■Mi&^'S.'H'^'':  '■' 


iiU^t 


T 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 
GIFT  OF 


i 


I 


IJ 


PRACTICAL   TREATISE 


LAW  OF  PARTNERSHIP: 


APPENDIX  OF  PRECEDENTS. 


By  NIEL  GOW,  Esd. 


OF   LINCOLN  S    INN,    BARRISTER    AT    LAW. 


THIRD  AMERICAN,  FROM  THE  LAST  LONDON  EDITION: 


WITH    CONSIDERABLE    ALTERATIONS    AND    ADDITIONS  ;    AND 
NOTES    AND    REFERENCES    TO    AMERICAN    DECISIONS. 


By    EDWARD    D.    INGRAHAM,  Esq. 


PHILADELPHIA: 

ROBERT  H.  SMALL,  LAW  BOOKSELLER,  MINOR  STREET. 

1837. 


Entered  according  to  Act  of  Congress,  in  the  year  1831,  by  Robert  H.  Small, 
in  the  Clerk's  Office  of  the  District  Court  for  the  Eastern  District  of 
Pennsylvania. 


T 


PmtADELPHIA  : 

PRINTED   BY   WILLIAM    S.    MARTIEN, 

GEORGE   STREET. 


CONTENTS 


CHAPTER  I. 


Page. 

Of  the  contract  of  partnership          _         _         _         _         - 

1 

CHAPTER  H. 

Sect.  1. 

The  interest  of  partners  in  stock  in  trade   - 

31 

in  real  property     - 

32 

Sect.  2. 

Of  acts  by  which  one  partner  may  bind  the  firm    - 

36 

One  partner  binding  the  firm  by  bill  or  note 

38 

by  simple  contracts   - 

50 

by  a  guarantee   - 

56 

by  deed     -         -         - 

58 

by  a  release 

60 

by  a  receipt 

62 

in  legal  proceedings   - 

63 

by  a  submission  to  ar- 

bitration 

66 

in  bankruptcy    - 

68 

Sect.  3. 

Legal  remedies  between  partners       -         -         - 

69 

Sect.  4. 

Equitable  remedies  between  partners 
CHAPTER  IH. 

93 

Sect.  1. 

Legal  remedies  for  partners  against  strangers 

116 

Sect.  2. 

Equitable  remedies  for  partners  against  strangers 

142 

CHAPTER  IV. 

Sect.  1.  Legal  remedies  against  partners          ...  145 

Sect.  2.  Equitable  remedies  against  partners    -         -         -  211 

Sect.  3.  Proceedingsagainstpartnersatthesuitofthecrown  214 

CHAPTER  V. 

Sect.  1.  The  causes  of  the  dissolution  of  a  partnership      -  218 
Sect.  2.  The  consequences  of  the  dissolution  of  a  partnership  230 

Sect.  3,  The  consequences  of  a  dissolution  by  bankruptcy  256 

Sect.  4.  The  consequences  of  a  dissolution  by  death          -  348 


iv  CONTENTS. 


APPENDIX. 


Page 


No.  1.  Deed  of  partnership  between  three  persons  as  auc- 
tioneers and  surveyors,  of  whom  two  had  previ- 
ously been  engaged^in  the  same  business,  and  the 
third  had  acted  as  clerk  to  one  of  them,  with  ordi- 
nary clauses     -         -         -         -         -         -         "     ^'^ 

No.  2.  Deed  of  copartnership  between  six  persons  as  mer- 
chants, with  some  special  clauses        -         -         -     381 

No.  3.  Deed  pool  for  continuing  or  renewing  a  partner- 
ship for  a  further  term 391 

No.  4.  Deed  of  release  and  assignment  from  a  retiring  to  a 

continuing  partner,  ------     392 

No.  5.  Deed  of  dissolution  of  a  partnership  between  two 
persons,  where  one  of  them  continues  to  carry 
on  the  business  ------     394 

No.  6.  Report  of  the  case  of  Natush  v.  Irving{l)    -         -     398 


(1)  The  case  of  Natush  v.  Irving,  and  the  remarks  of  the  Lord 
Chancellor  upon  it,  not  appearing  elsewhere  in  print,  is  preserved  in 
the  Appendix. 


A  TABLE  OF  THE  CASES  CITED. 


Abbot  V.  Smith,  17.  79.  106.  166.  209. 

Abel  V.  Sutton,  50.  251. 

AheU,  Ex  parte,  313. 

Acerro  v.  Petroni,  140.  194. 

Ackerman,  Ex  parte,  298.  310. 

Adam,  Ex  parte,  289. 

Adams,  Ex  parte,  291.  293.  321. 

Addis  V.  Knight,  337. 

Addison  v.  Overend,  137. 

Adley  v.  Whitstable  Company,  93,  94. 
97.213. 

Agacu,  Ex  parte,  42.  108. 

Akhurst  v.  Jackson,  71. 107.  302. 

Albrecht  v.  Sussman,  121. 

Alcock,  Ex  parte,  3J0. 

Alder  v.  Fouracre,  34.  232.  349. 

Alderson  v.  Clay,  140.  191. 

V.  Pope,  25.  66.  159. 

Aldritt  V.  Kittridge,  342. 

Alexander,  Ex  parte,  125. 129. 

Allan  V.  Hartley,  257. 

Allen  V.  Downes,  261. 

V.  Kilbree,  309. 

Amory  v.  Merryvveather,  85. 

Anderson  v.  Maltby,  26.  237. 

V.  Martindale,  126. 131. 170. 

Andrews  v.  Ellison,  81. 

Annand  v.  Honiwood,  32.  348. 

Ansell  V.  Waterhouse,  79.  86.  183. 

Antrarn  v.  Chase,  60.  67. 

Apsey,  Ex  parte,  286. 

Arden  v.  Sharp,  43.  46. 

Arton  V.  Booth,  60,  61. 

Atkins,  Ex  parte,  292. 

Atkins  V,  Tredgold,  64.  196. 

Atkinson,  Ex  parte,  288. 

V.  Elliott,  334. 

Attorney-General  v.  Burges,  161.  184. 
214. 

V.  Governors  of  Found- 
ling Hospital,  94.  213. 

V.  Stannyforth,  214. 


Atvvood  V.  Rattenbury,  132.  140, 

■  V.  Small,  79. 

Aubert  v.  Maze,  5.  82.  84,  85. 
Ayliffv.  Scromshire,  188. 

Backhurst  v.  Clinkard,  204. 
Baglchole,  Ex  parte,  121. 
Bailey  v.  Vincent,  353. 
Baker  v.  Charlton,  48. 
Baldney  v.  Ritchie,  178. 
Baldwin  v.  Lawrence,  98.  212. 
Ball  V.  Dunsterville,  59. 


Ball  V.  Storie,  368. 

Ballam  v.  Price,  210. 

Balmain  v.  Shore,  35.  220.  349,  350. 

Bamford,  Ex  parte,  258. 

Banks,  Ex  parte,  286. 

V.  Scott,  356. 

Barber  v.  Backhouse,  44. 

V.  Barber,  102. 

Barclay,  Ex  parte,  314. 

V.  Gooch,  82. 

V.  Lucas,  124. 

Barfoot  v.  Goodall,  249. 

Baring's  Case,  361. 

Baring  v.  Dix,  226. 

Barker  v.  Goodair,   144.  205.  208  228. 

299.  308,  309. 
Barnard  v.  Gostling,  162. 
Barnardiston  v.  Chapman,  91.  136. 
Barned,  Ex  parte,  173.  299.  311. 
Barough  v.  White,  195. 
Barret  v.  Gore,  199. 
Barron,  Ex  parte,  294.  346. 
Barrow,  Ex  parte,  274.  278. 
Barton  v.  Hanson,  150. 

V.  Williams,  51.  53.  92. 

Barwis,  Ex  parte,  261. 
Basarro,  Ex  parte,  310. 
Bate,  In  re,  296.  369. 
Batson,  Ex  parte,  281.  317. 
Baudier,  Ex  parte,  267.  312. 
Bayley  v.  Loyd,  61. 
Beak  v.  Beak,  351.  354. 
Beale,  Ex  parte,  266. 
Bean,  Ex  parte,  347. 
Beasly  v.  Beasly,  257.  266. 
Beaumont  v.  Boultbce,  101. 

V.  Meredith,  2.  97,  98.  227. 

Beekwith,  Ex  parte,  346. 
Bedford  v.  Deakin,  157.  241. 
Beechcr  v.  Guilburn,  106. 
Beer  v.  Ward,  226. 
BcUhy,  Ex  parte,  288. 
Belcher  v.  Sykes,  236. 
Bell,  Ex  parte,  82.  85. 

V.  Ansloy,  123. 

V.  Humphries,  52. 

V.  Phyn,  35. 

Bellairs  v.  Ebsworth,  125. 
Ballasis  v.  Hester,  32. 
Ben  field.  Ex  parte,  261. 
Benjamin,  Ex  parte,  346. 

V.  Porteus,  19.  141. 


Bensley  v.  Bignold,  5.  84. 
Benson,  Ex  parte,  289. 


VI 


TABLE    OF    CASES. 


Bentley,  Ex  parte,  288. 
Berncy  v.  Davison,  259. 

V.  Vyner,  259. 

Berridge  v.  Merrill,  176. 
Bevan,  Ex  parte,  286.  289. 

V.  Lewes,  283. 

Biddle  v.  Levy,  176.  192. 
Bigg,  Ex  parte,  290. 
Biggs  V.  Fellows,  6.3.  130. 

V.  Lawrence,  5. 82. 117. 

Bignold  V.  VVatcrhousc,  56.  66. 
Binford  v.  Domtnett,  99. 113.  278. 
Bingham,  Ex  parte,  284. 
Birdwood  v.  Hart,  335. 
Birkett,  Ex  parte,  228. 260,  341. 
Birt  v.  Hood,  200. 
Bishop  v.  Church,  370. 
Blackburn,  Ex  parte,  288. 

V.  Stupart,  210. 

Blackett  v.  Weir,  201. 
Blagden,  Ex  parte,  336,  337. 
Blair  v.  Agar,  143. 
Blake,  Ex  parte,  316. 
Blakey,  Ex  parte,  68.  228. 
Bland  v.  Haselrig,  64. 
Blankenhapen,  Ex  parte,  286. 
Bloxam  v.  Hubbard,  133. 136.  277. 
Bloxham  v.  Pell,  21. 
Boardman,  Ex  parte,  294. 
Bodenham  v.  Purehas,  244. 
Bold,  Ex  parte,  261. 
Bolitho,  Ex  parte,  40.  283. 
Bolland  v.  Nash,  336. 
Bolton,  Ex  parte,  288.  311.  328. 

v.  Puller,  203.  267.  271.  299. 

Bonbonus,  Ex  parte,  41.  44.  46.  264. 284. 
Bond,  Ex  parte,  286,  287. 

V. 'Gibson,  52. 

Booth  v.  Hodgson,  85.  159, 
Bosanquet  v.  Wray,  88.  119.  357. 
Boson  v.  Sandford,  160.  166.  181. 
BotteriU,  Ex  parte,  328. 
Bovil  V.  Hammond,  73,  74. 

V.  Wood,  172.  175. 

Boughton  V.  Frere,  194. 
Bourne,  Ex  parte,  229. 

V.  Freeth,  23.  38. 155. 

Bower  v.  Swadlin,  187. 
Bowness,  Ex  parte,  260. 
Boyd,  Ex  parte,  294. 
Boydell  v.  Drummond,  250. 
Boyle,  Ex  parte,  334. 
Bradley  v.  Millar,  .328. 
Braithwailc  v.  Skoficld,  155. 
Brammcl  v.  Jones,  90. 
Brand  v.  Boulcott,  87. 
Brandon  v.  Hubbard,  130. 
Brandram  v.  Wharton,  64.  196. 
Branton  v.  Taddy,  29. 
Brassington  v.  Ault,  128. 
Bray  v.  Fromont,  5. 
Bretherton  v.  Wood,  185. 
Brice's  Case,  362. 


Brickhead  v.  York,  185. 
Brickwood  v.  Annis,  210. 

V.  Miller,  306.308. 

Bridges  v.  Mitchell,  102. 
Bridgett  V.  Mills,  329. 
Bristow  V.  James,  170. 184. 

V.  Potts,  308. 

V.  Taylor,  62.  252, 

Bromage  v.  Prosser,  118. 
Bromficld,  Doe,  d.  v.  Smith,  177. 
Bromley  v.  Goodere,  296. 
V.  King,  257, 


Brooke  v.  Enderby,  245. 
Broome,  Ex  parte,  107.  302.  323. 
Broughton  v.  Proprietors  of  Manchester 

and  Salford  Water  Works,  28. 
Brown,  Ex  parte,  266.  282.  289. 347. 

V.  Brown,  199. 

V.  Do  Tastet,  96.  2-55.  354,  355. 

V.  Fox,  199. 

V.  Hedges,  90. 136. 

V.  Holt,  30. 

V.  Leonard,  198. 

V.  Litton,  255.  354. 

V.  Turner,  83. 

V.  Vidler,  232.  255. 

Browne,  Ex  parte,  126.  229. 
Brownell  v.  Brownell,  102. 
Bruce,  Ex  parte  294. 
Brutton  v.  Burton,  59. 
Buchanan  v.  Findlay  333. 
Buck  V.  Buck,  30. 
Buckland  v.  Newsame,  68. 
Buckley  v.  Cater,  97.  227, 
Buddie  V.  Wilson,  166, 
Bullen,  Ex  parte,  262, 
Buhner,  Ex  parte,  84, 
Burden  v.  Burden,  355. 
Burgess  v.  Merrill,  175. 
Burgue  v.  Firman  dc  Tastet,  193. 
Burkv.  Brown,  100, 
Burleigh  v.  Stott,  196, 
Burlton  v.  Wall,  258.  264. 
Burn,  Ex  parte,  '^11. 

v.  Burn  59.  360.  369. 

Burnaby,  Ex  parte,  269. 
BurncU  v.  Minot,  80. 
Burrcll,  Ex  parte  291. 
Burroughs  v.  Elton,  34, 
Burton,  Ex  parte,  276,  289. 

v.  Green.  205. 

V.  Issit,  66. 

Burton  v.  Woolcy,  7.  113. 
Butlin,  Ex  parte,  287, 
Butts  v.  Bilkc,  263.  264. 
Buxton  V.  Lister,  109. 
Byers  v,  Dobey,  88, 166, 
Bygrave,  Ex  parte,  258, 

Cabell  V.  Vaughan,  125,  134.  136.  169. 

171.  184. 
Calder  v.  Rutherford,  173.  358. 
Campbell  v.  Mullett,  207.  233.  '235,  238 


TABLE    OF    CASES. 


VU 


Candler  v.  Candler,  15. 

Cannan  v.  Bryce,  85. 

Capper  v.  Desangcs,  259. 

Carlen  v.  Drury,  17.  79.  98. 104, 105.  111. 

Carpenter,  Ex  parte,  238.  324. 

Carrington  v.  Cantillon,  213. 

Carruthers  v.  Sheddon,  123. 

Carter,  Ex  parte,  327. 

V.  Dean,  368. 

Carvick  v.  Vickery,  6.  39. 
Castel],  Ex  parte,  293. 
Catesby,  Ex  parte,  292. 
Catt  V.  Howard,  65. 197. 
Cawthorn  v.  Challie,  352. 
Chambers,  Ex  parte,  329. 

V.  Goldwin,  101. 

Chancey  v.  May,  97.  143. 
Chandler,  Ex  parte,  298.  315. 

V.  Dorset,  101. 

V.  Parkes,  178. 

Chapman  v.  Beach,  114.  227. 

V.  Graves,  199. 

V.  Koops,  205,  206. 

Chappie  V.  Cadell,  115. 
Charlton  v.  Poulter,  114. 
Chavany  v.  Van  Sommer,  225. 
Cheap  V.  Cramond,  14.  18.  63. 
Cheetham  v.  Crom.  366. 

V.  Ward,  186. 

Cheyne  v.  Koops,  200. 

Child  V.   Hudson's  Bay  Company,  30. 

334. 
Child  "v.  Sands,  184. 
Cholmondeley  v.  Clinton,  226. 
Christie,  Ex  parte,  430. 
Clarke  v.  Glennic,  92. 
Clarke,  Ex  parte,  294. 

V.  Clement  209,  210. 

Clay,  Ex  parte,  313. 

Clayton's  Case,  244.  360.  364. 

Clerk  V.  Blackstock,  39. 

Clowes,  Ex  parte,  283.  284. 

Cluges  V.  Penaluna,  117. 

Coates  V.  Coates,  240. 

Cobham,  Ex  parte,  299.  312. 

Cock  V.  Tunno.  344. 

Cockburn  v.  Thompson,  29.  107.  212. 

Coffee  V.  Brian,  75. 

Cohen  v.  Hannam,  123. 

Colbeck,  In  re,  22.  264.  278. 

Coldwell  V.  Gregory,  228.  278,  279.  306. 

Coles  V.  Gurney,  213. 

Collins  V.  Prosser,  107. 

Colman,  In  re,  258. 

Colson  V.  Selby,  168. 

Colt  V.  Wollaston,  109. 

Cook,  Ex  parte,  267. 

V.  Batchellor,  118.  133. 

V.  Collingridgc,  235.  352.  355, 

V.  Rhodes,  226. 

Coopev.  Eyre,1.5.  17. 154. 
Copland,  Ex  parte,  312. 
Coryton  v.  Lithebye  118.  133. 


Cossart,  Ex  parte,  296. 
Cossham  v.  Goldncy,  202. 
Courtney,  Lord,  v.  Godschall,  102. 
Cousins  V.  Smith,  94.  97. 132. 143.  179. 
Cowell  V.  Edwards,  107. 
V.  Sike,  360. 


Coxeter  v.  Anderson,  89. 
Coxwell  V.  Bromet,  232.  354. 
Craven  v.  Knight,  323. 

Lord,  v.  Widdows,  16. 


Crawfurd  v.  Liddell,  102. 
Crawshay  v.  Collins,  231,  232.  234.  255. 
302.  349. 

V.  Maule,  33,  35.  115.219. 


221.  223.  225.  231.  235.  350.  351.  362. 
Crew,  Ex  parte,  264. 
Cridland,  Ex  parte,  263. 
Crisp,  Ex  parte,  347. 

V.  Perritt,  297. 

Croftv.  Pyke,  321. 
Crosse  v.  Smith,  138. 
Crowder  v.  Tinkler,  213. 
Crutwell  V.  Lye,  349. 
Cubitt  V.Porter,  91. 
Curling  v.  Oakley,  295. 
Currie,  Ex  parte,  296 
v.  Child,  199. 


Curtis  v.  Perry,  277. 
Cust,  Ex  parte,  292.  318. 
Cutten,  Ex  parte,  265. 

Dacie  v.  John,  232. 

Dale  v.  Hall,  183. 

Dance  v.  Girdler,  124. 

Daniel  v.  Cross,  363.  366. 

Daniels,  Ex  parte,  84. 

Darcy  v.  Allen,  2,  3. 

Darwent  v.  Walton,  164.  212. 

Davenport  v.  Rakestraw,  129. 

David  V.  Ellice,  157.  242. 

Davidson  v.  Napier,  309. 

Daviesv.  Hawkins,  132. 179. 

Davis  V.  Fisk,  30.  99. 

Dawson  v.  Dawson,  101. 

Dean  v.  Newhall,  188. 

De  Berengcr  v.  Ilammell,  227. 

De  Berkom  v.  Smith,  24.  192. 

De  Cosson  v.  Vaughan,  345. 

Deering  v.  Lord  VVinchelsea,  79.  106 

Deeze,  Ex  parte,  333. 

Delawney  v.  Strickland,  155. 

Denton  v.  Rodie,  154. 

De  Tastet,  Ex  parte,  310.  312. 

v.  Shaw,  74.  88. 119. 

v.  Taylor,  121. 


Deux  v.  Jeffereys,  188. 

Dewdney,  Ex  parte,  195.  258.  298.  310, 

311. 
Dickenson  v.  Lockyer,  243. 
Dickson,  Ex  parte,  329. 
Ditchburn  v.  Spracklin,  131.  193. 
Dixon  V.  Cooper,  18. 
Doddington  v.  Hallct,  17. 110. 


VIU 


TABLE    OF    CASES. 


Doe  V.  Baker,  130. 

Dolman  v.  Orchard,  50. 198. 
Donegal,  Marquis  of,  v.  Stewart,  99. 
Doo  V.  Chippendcn,  178. 
Dove  V.  Hogg-,  66. 
Douglass  V.  Horsfall,  143. 

V.  Patrick,  189. 

Dowell  V.  Moon,  29. 
Downham  v.  Mathews,  110. 
Dowse  V.  JefFerics,  189. 
Drake,  Ex  parte,  316.  323. 
Drew  V.  Drew,  99. 

V.  Power,  101. 

Dry  V.  Boswell,  19. 
Dubois  V,  Ludert,  179. 
Duckworth,  Ex  parte,  347. 

Duff  V.  East  India  Company,  102.  252. 

276. 
Dunbar  v.  Len,  101. 
Duncan  v.  Lowndes,  57. 
Dunlop,  Ex  parte,  174.  316. 
Dutton  V.  Morrisson,  60.  204,  205.  208. 

228.  259.  299.  308,  309.  312.  321. 
Dwerryhouse  v.  Graham,  163. 
Dyster,  Ex  parte,  278. 

East  India  Company  v.  Evans,  3. 

V.  Sandj's,  3. 

Easum  v.  Cato.  333. 
Eccleston  v.  Clipsham,  184. 
Eckhardt  v.  Wilson,  128.  259.  341. 
Eddie  V.  Davidson,  204. 206. 
Edgar  v.  Fowler,  86. 
Edmonson  v.  Davies,  162. 
Edwards,  Ex  parte,  329.  338. 
Elliot,  Doe  d.  v.  Hulme,  66. 
Elliot  V.  Brown,  34. 

V.  Davis,  59.  139.  190. 

Ellis,  Ex  parte,  323.  327. 

v.  Schmaeck,  156. 

v.  Watson,  192. 

Ellison  v.  Bignold,  30.  81.  95.  227. 

v.  Dezell,  61. 

Elton,  Ex  parte,  298. 
Emly,  Ex  parte,  34.  40.  283. 

V.  Lye,  40.  154. 

Emmett  v.  Butler,  175.  199. 
Enderby,  Ex  parte,  275. 280. 

V.  Gilpin,  26,  27. 

England,  Bank  of.  Ex  parte,  290. 

Estwick  V.  Coningsby,  356. 

Evans  v.  Curtis,  191. 

V.  Drummond,  156.  197.  243.  251. 

V.  Lewis,  169. 

V.  Mann,  139. 

V.  Richardson,  84. 

V.  Silvcrlock,  141. 

V.  Yeatherd,  79.200.  202. 

Everett  v.  Backhouse,  261.  309.  314. 
Everth  v.  Black  burne,  29. 
EweJ  V.  Ambrose,  202. 

Faikney  v.  Renous,  83. 


Farlow,  ExpaHe,  297.  312. 
Farmer  v.  Russell,  86. 
Farr  v.  Pearce,  350. 
Fawcett  v.  Wrathall,  201. 
Featherstone  v.  Hunt,  158.  242. 
Featiierstonhaugh  v.  Fenwick,  34.  224, 

225.  232.  234.  255. 
Fell,  Ex  parte,  238.  268  273.  275,  276. 
Fenn  v.  Harrison,  33. 
Fenning  v.  Lord  Grenville,  91. 
Fereday  v.  Hordern,  26. 
.  V.  Wightwick,  115.  233.  234. 

267.  321. 
Ferrail  v.  Shaen,  325. 
Figes,  Ex  parte,  309. 

V.  Cutler,  72. 

Fitzgerald  v.  Boehm,  131. 173. 

v.Trant,188. 

Fletcher,  Ex  parte,  346. 

V.  Dyche,  138.  190. 

Flindt  v.  Scott,  121. 

Flint,  Ex  parte,  333. 
Flintum,  Ex  parte,  312, 
Flower  v.  Herbert,  202. 

V.  Young,  193. 

Flyn,  Ex  parte,  278. 
Form  an  v.  Horn  fray,  95. 
Fort  V.  Oliver,  174. 
Foster  v.  Alanson,  71.  74. 

v.  Donald,  106. 

v.  Hale,  33.  114. 

V.Hodgson,  102. 

v.  Law^son,  118. 

Fox  v.  Hanbury,  32.  51.  205.  228,  229. 

236.  248.  298. 30G. 
Franklin  v.  Lord  Brownlow,  341. 
Franklyn,  Ex  parte,  294. 
Freeman,  Ex  parte,  241.  253.  285.  287. 

292. 
Freeman,  In  re,  369. 
French  v.  Andrade,  139.  190. 

V.  Backhouse,  52. 

v.  Fenn,  333,  334. 


Fromont  v.  Coupland,  14.  74. 150. 
Fry,  Ex  parte,  241.  285.  287. 
Fuller  V.  Gibson,  341. 
Furnival  v.  Weston,  61.  65.  118. 

Gainsborough  v.  Stork,  353. 

Gale  V.  Leekie,.71. 

Gallimore,  Ex  parte,  229.  347. 

Gahvay,  Lord,  v.  Matthew,  40,  49. 198. 

Gardner,  Ex  parte,  259.  265.  266. 

Gardom,  Ex  parte,  57. 

Garret  v.  Handley,  122. 126. 

Garret  v.  Taylor,  129. 

Geddes  v.  Wallace,  10. 11,  23.  80.  105. 

354. 
Cellar,  Ex  parte,  14.  53. 
Geller,  Ex  parte,  314. 
George  v.  Claggett,  139. 
Germaine  v.  Frederick,  169. 
Gibbons  v.  Wilcox,  20.  191,  192. 


TABLE  OF  CASES. 


IX 


Gibbs  V.  Merrill,  175,176. 

Gibson  v.  Hudson's  Bay  Company,  334. 

Gillam,  Ex  parte,  265. 

Gillespie  v.  Hamilton,  219.  221.  362. 

Glassingfon  v.  Thwaites,  7. 100. 113. 114. 

227.  240. 
Glennie  v.  Edmunds,  333. 
Glossopv.  Colman,2.  129.  141. 
Glover,  Ex  parte,  329. 
Godfrey  v.  Browning,  220,  350. 

V.  Turnbull,  248.  250. 

Godson  V.  Good,  167.  172. 180. 
V.  Smith,  171. 

Gold  V.  Canham,  247. 

Goldsmith  v.  Levy,  164. 

Goodacre  v.  Breame,  200. 

Goodall,  Ex  parte,  297. 

Goode  V.  Harrison,  2.  20.  23. 177.  248. 

Goodman  v.  Whitcomb,  112. 114.  227. 

Gordon  v.  Austin,  174. 

Gorham  v.  Thompson,  20.  250. 

Goss  v.  Dufresnoy,  323. 

Govett  V.  Radnidge,160.  166.  181. 183. 

Gough  V.  Duvies,  158.  243.  363. 

Goulding-,  Ex  parte,  43. 

Gourlay  v.  Duke  of  Somerset,  103. 

Gouthwaite  v.  Duckv?orth,  15, 16. 152. 

Grace  v.  Smith,  14.  21,  22. 

Graham  v.  Hope,  249,  250. 

V.  Mulcaster,  343. 

v.  Robertson,  87.  341. 

Grant  v,  Hawkes,  47. 

V.  Jackson,  64. 194. 

V.  Royal  Exchange  Ass.  Company, 

Graves  v.  Sawyer,  92. 

Graves  v.  Chisvvell,  359.  360.  368. 

v.  Fowler,  325. 

v.  Minnethorpe,  101. 

Green  v.  Barrett,  109. 

v.  Deakin,  43. 

V.  Greenbank,  184. 

V.  Waring,  230. 

Greenslade  v.  Dower,  38.  152. 
Greenwood,  Ex  parte,  314. 
Gregson  v.  Hutton,  44. 
Grellier  v.  Neale,  178. 
GnW,  Ex  parte,  317. 
Guidon  v.  Robson,  23,  24.  126. 
Guthrie,  Ex  parte,  133. 
v.  Fisk,  133.  143. 

Haddock  v.Thomlinson,  213. 

Hadley,  Ex  parte,  .331. 

Hague  V.  Rolleston,  228.267.298.  305. 

Haigh  V.  Conway,  174. 

Halfhidc  V.  Penning,  103. 

Halket,  Ex  parte,  368. 

Hall,  Ex  parte,  60.  68.  310,  311. 

V.  Curzon,  201. 

V.  Gurney,  301. 

V.  Smith,  39,  40. 


Hamer,  Ex  parte,  281. 

Hamil  v.  Stokes,  107.  302. 

Hammond  v.  Douglas,  349.  354. 

Hamon  v.  White,  136. 

Hamper,  Ex  parte,  14.  16.  18.  179.  203. 

261.  265. 
Hancock  v.  Entwisle,  333. 

V.  Haywood,  344,345. 

Hankey  v.  Garret,  205.  309.  323. 

V.  Smith,  334. 

Hannan  v.  Roll,  187. 
Hanson,  Ex  parte,  336.  340. 
Harcourt,  Ex  parte,  229. 
Hardcastle,  Ex  parte,  264. 
Hardenberg,  Ex  parte,  329. 
Harding  v.  Carter,  55. 

v.  Glover,  231. 

Hardy  v.  Martin,  239. 
Hargreaves,  Ex  parte,  274.  292. 
Harley  v.  Greenwood,  329. 

Harris,  Ex  parte,  149. 239.  254. 269. 276. 
291,  292.  317,  318.  321. 

V.  Wade,  59. 

Harrison's  Case,  346. 

Ex  parte,  32. 

V.  Armitage,  95.  114. 

V.  Fitzhenry,  129. 

V.  Gardner,  107. 

V.  Jackson,  37,  38.  58.  163. 

Harrison  v.  Millar,  29. 
Hartz  v.  Schrader,  352.  356. 
Harvey  v.  Crickett,  73. 228.  307, 

V.Kay, 88. 119. 

v.  Morgan,  343. 

Harwood  v.  Edwards,  65. 
Hawkins  v.  Ramsbottom,  175. 
Hawkshaw  v.  Parkins,  59. 60. 
Hay,  Ex  parte,  286. 

V.  Fairbain,  277. 

Haydon,  Ex  parte,  312. 
Heathv.  Hall,  311,328. 

V.  Hubbard,  92. 

V.  Percival,  243,  244.  370. 

Heathecote  v.  Hulme,  231.  355. 
Heaton,  Ex  parte,  286. 
Helsby  v.  Mears,  56. 150. 
Henderson,  Ex  parte,  175.  261. 

V.  Wild,  43.  62.  252. 


Henley  v.  Soper,  74. 
He;-cy  v.  Birch,  110. 
Herries  v.  Jameson,  79.  168. 
Hcsham,  Ex  parte,  292. 
Hcskelh  v.  Blatichaid,  10.  14. 
Heydon  v.  Heydon,  204.  299. 
Hiard  v.  Bigg,  150. 
Hickmott's  Case,  171. 
li'iW,  Ex  parte,  211.  ZU. 

V.  Burnham,  354. 

Hitciion  V.  Bennett,  368. 
Hoare  v.  Contenein,  359. 

Dawes,  14.  25.  154.  179. 


Hodcnpyl  v.  Vingcrliocd,  194. 


B 


TABLE    OF    CASES. 


Hodgkinson,  Ex  parte,  60.  68.  156.  179. 
262. 

V.  Travers,  266. 

Hodgson,  Ex  parte,  299.  312. 

V.  Temple,  117. 

Hogg  V.  Bridges,  343. 

Holderness  v.  Shackles,  300,  301.  304. 

Holliday  v.  Camsell,  90. 

HoJlis  V.  Carr,  246. 

Holme  V.  Green,  196. 

Holmes,  Ex  parte,  297. 

V.  Blogg,  177. 

V.  Higgins,  6.  74.  77. 

V.  Williamson,  79. 

Holyland  v.  De  Mendez,  237. 
Hood  V.  Aston,  108. 
Hooper,  Ex  parte,  126. 

V.  Lusby,  52. 

Hope  V.  Cust,  37. 45. 
Hopkinson  v.  Smith,  15. 
Hopley,  Ex  parte,  314. 
Horn  V.  Baker,  274. 
Hornblower  v.  Proud,  275. 
Horner  v.  Moore,  170. 
Horsey's  Case,  299. 
Horsfall,  Ex  parte,  309. 
Hovill  V.  Browning,  250. 
Houghton,  Ex  parte,  211. 
Houlton's  Case,  362. 
Howlett  V.  Haswell,  178. 
Hubbard,  Ex  parte,  310.  315. 
Hubert  v.  Nelson,  162. 

Hudson  V.  Robinson,  159. 167.  202. 

Hugget  V.  Montgomery,  160. 

Hume  V.  Bolland,  55.  148. 

Humphreys  v.  Hollis,  212. 

Hunt  V.  Royal  Exch.  Ass.  Company,  66. 

V.  Passman,  209. 

Hunter,  Ex  parte,  107.  262.  267.  283. 
290.  316.  327. 

V.  Richardson,  121. 

Hurst  V.  Watkis,  89. 
Husband,  Ex  parte,  284.  288. 
Hussey  v.  Fiddall,  341. 
Hutton  V.  Eyre,  81.  188. 
Hyatv.  Hare,  52.  172.358. 

Irvine  v.  Young,  102. 
Israel  v.  Douglas,  65. 

V.  Simmons,  131. 

Jacaud  v.  French,  120. 
Jackson,  Ex  parte,  284.  347. 

V.  Anderson,  92. 

V.  Fairbank,  195. 

V.  Jackson,  32. 

V.  Sedgwick,  10.  105.  353,  254. 

Jacky  V.  Buller,  204.^ 
Jocomb  V.  Harwood,  370. 
JafFray  v.  Fairbain,  178. 
Jaggers  v.  Binning,  194. 
James  v.  Datid,  89. 


•  V.  Kynnier,  336. 


Jansen,  Ex  parte,  310.  314. 
January  v.  Spires,  118. 
Jefterys  v.  Small,  34.  348. 

V.  Smith,  12. 115.  225.  233. 

Jell  V.  Douglass,  131.  134. 173. 
Jenkins  v.  Blizard,  249, 250. 
Jepson,  Ex  parte,  281. 
Jestons  V.  Brooke,  25 
Johns,  Ex  parte,  292. 
Johnson  v.  Baker.  60. 

V.  Curtis,  101,  102. 

V.  Peck,  121. 


Jones,Ex  parte,  278.  310.  315.  347. 

V.  Dwyer,  272. 

V.Garcia  del  Rio,  100. 

V.  Gibbons,  275. 

V.  Herbert,  61. 

V.  Sutton,  363. 

V.  Yates,  88.  119. 

Josephs  V.  Pebrer,  30. 
Jovvett  V.  Charnock,  194. 
Joy  V.  Campbell,  94. 

Keble  v.  Thompson,  285. 

Keene  v.  Riley,  368. 

Kelby  v.  Vernon,  87. 

Kemble  v.  Farren,  142. 

Kemp  V.  Andrews,  134.  358. 

Kendall,  Ex  parte,  314.  321.  362.  366. 

368. 
Kennedy  v.  Lee,  107.  239. 
Kensington,  Ex  parte,  125.  313,  314. 
Kershaw  v.  Matthews,  221.  350. 
Key  V.  Flint,  333. 
Kilby  V.  Wilson,  147. 
Kilgour  V.  Finlayson,  49,  50.  251. 
Kill  V.  Hollister,  89. 
Kinder  v.  Taylor,  17.  95. 97. 99. 110,  111. 

219. 
King,  Ex  parte,  294.  321.  323. 326.  347. 
Kinnear  v.  Tarrant,  341. 
Kinnerly  v.  Hossack,  138.189. 
Kinsman  v.  Barker,  101. 
Kipling  v.  Turner,  124. 
Kirkham  v.  Newstead,  129. 
Kirkley  v.  Hodgson,  277.  279. 
Knott,  Ex  parte,  288. 
Knowles  v.  Haughton,  94. 

Lacon  v.  Lacon,  102. 
Lacy  V.  Kynaston,  188. 

V.  flIcNeile,  65.  197. 

La  Forest,  Ex  parte,  289. 
Lake  v.  Craddock,  33,  34,  35. 
Lambert's  Case,  125. 
Lane  v.  Williams,  39.  359.  366.  369. 
Lanesborough  v.  Jones,  337. 
Lanfear,  Ex  parte,  311. 
Langdaie,  Ex  parte,  14.  23. 
Langton  v.  Hughes,  84. 
Lavender,  Ex  parte,  265.  298. 


TABLE    OF    CASES. 


XI 


Law,  Ex  parte,  346. 
Lawler  v.  Kershaw,  13. 
Lawson  v.  Morsam,  225. 
Laycock,  Ex  2Mrte,310. 
Laylon,  Ex  parte,  179.  261. 
Leanie  v.  Bray,  160. 
Leaverland,  Ex  parte,  265. 
Lechmere  v.  Brasier,  368. 
Lee,  In  re,  314. 
Lees  V.  Smkh,29. 
Leeson  v.  Holt,  250. 
Legh  V.  Leg-h,  61. 
Leglise  v.Champante,  140. 
Lcigli  V.  Thomas,  96. 
Leslie  v.  Wilson,  184. 
Leveck  v.  Shaftoe,  21.  128.  140. 
Lewis  V.  Morgan,  101. 
Liardet  v.  Adams,  222.  227. 
Liddel,  Ex  parte,  286. 
Lightfoot  V.  Tenant,  84. 
Lingard  v.  Bromley,  86.  185. 

V.  Messitcr,  279. 

Lingen  v.  Simpson,  32.  234.  239.  255. 
Littlewood  v.  Caldwell,  109. 
Lloyd,  Ex  parte,  125. 

V.  Archbowle,  128. 139. 

V.  Ashby,42. 163. 

V.  Fresh  field,  283. 

V.  Loaring,  94. 

Lodge,  Ex  parte,  291.  317. 

T.Dicas,  157.241. 

London's  Case,  City  of,  3. 
Longman,  Ex  parte,  310. 
Lovelace's  (Lord)  Case,  59. 
Low  V.  Copestake,  87. 
Lowfield  V.  BencrofT,  191. 
Lucas  V.  Delacour,  65.  130. 141. 
Luckett  V.Graham,  201. 
Luke  Ex  parte,  346. 

Maberley,  Ex  parte,  298. 
Machell,  Ex  parte,  310.  315. 

— V.  Kinnear,  140. 

McConnell  v.  Hector,  121. 

Madox  v.  Jackson,  107. 

McGae,  Ex  parte,  304. 

McGennis,  Ex  parte,  347. 

Mclver  v.  Humble,  4.  23.  193.  199.  248. 

McMichael  v.  Johnson,  174. 

Macmurdo  v.  Bircii,  164. 

M'Nair  v.  Fleming,  48. 

Magor  V.  Hammond,  28. 

Mainwaring  v.  Newman,  88.  119. 

Mair  v.  Glennie,  19.  277. 

Maitland  v.  Goldney,  118. 

Mant  V.  Mainwaring,  199. 

March  v.  Ward,  39. 

Marlin,  Ex  parte,  282. 

Marriott  v.  Shaw,  204. 

Marsh  Ex  parte,  126.  304. 

v.  Vansommcr  44. 

Marshal  v.  Col  man.  111,  112. 
Marson  v.  Barber,  208. 


Martell,  Ex  parte,  310. 

Martin,  Ex  parte,  261.  276. 

V.  Croinpe,  131.  348.  358. 

Martyn  v.  Knowllys,  92. 

Mason  V.  Rumsey,  40. 

Masson,  Ex  parte,  286.  288. 

Master  v.  Kirton,  108.  225. 

Mather,  Ex  parte,  84. 

Matthews,   Ex  parte,  24.  178.  192.  261. 
328. 

Mavor,  Ex  parte,  259. 

Mawman  v.  Gillett,  128. 141. 

Max  v.  Roberts,  181.  183. 

Maxwell  v.  Jameson,  82. 

Nay  V.  Brown,  138. 

Mear,  Ex  parte,  346. 

Mears  v.  Serocold,  59. 

Melioruchi  v.  Royal  Exch.  Ass.  Compa- 
ny, 334. 

Merryweather  v.  Nixan,  79.  86. 185. 

Metcalfe's  case,  70. 

Metcalfe  v.  Bruin,  124. 

v.  Royal  Exch.  Ass.  Company, 


14.  53. 


V.  Rycroft,  130. 


Meux  V.  Humphry,  66. 

V.  Maltby,  96.  143.  212. 

Meyer  v.  Sharpe,  20.  308. 
Michell  V.  Harris,  89.  104. 
Milbank  v.  Revett,  114 
Millburti  V.  Codd,  78,  79.  256. 
Miller,  Ex  parte,  260. 
Mills,  Ex  parte,  310. 

V.  Bennett,  259. 

Milnesv.Gery,  103. 
Minchin,  Ex  parte,  294.  297. 
Minnett  v.  Whitney,  49.  52. 
Mitchell,  Exporte,60.  68. 

v.  Cockburn,  83.  85.  159. 

Mitchell  V.  Taibutt,  610.  182.  184. 
Moffat  v.  Van  Milligen,  119. 
Molony  v.  Gibbons,  247. 
Monkhouse  v.  Hay,  277. 
Monro,  Ex  parte,  275. 
Montgomery,  Ex  parte,  309. 
Moody  v.  King.  49.  199.  202. 
Moore,  Ex  parte,  327. 
Moravia  v.  Levy,  71.  75. 
Moreton  v.  Hardern,  146.  160. 
Morgan,  Ex  parte,  68. 
Morland  v.  Pellatt,  343. 
Morley  v.  Gaisford,  160. 
v.  Strombom,  164. 


Morris  v.  Colman,  7. 

v.  Wilford,  188. 

Morrisett  v.  King,  27. 
Morrow  v.  Belcher,  184. 
Morse  v.  Wilson,  26. 
Morton,  Exparte,  68. 
v.  Grey,  165. 


Mountstephen  v.  Brooke,  169. 
Mucklow  v.  Mangles,  278. 
Muirhead  v.  Salter,  20. 


Xll 


TABLE    OF    CASES. 


MuUelt  V.  Hook,  179. 

Munlon,  Ex  parte,  263. 

Murray  v.  East  India  Company,  28. 

Murray  v.  Somerville,  168. 

Musson  V.  May,  358. 

Mutree,  Ex  parte,  2G0. 

Myers  v.  Edge,  123. 

Nad  in  v.  Battie,  210. 

Nathan  v.  Buckiand,  127. 

Natusch  V.  Irving,  7.  112.  181.  231.  234. 

Neale  v.  Turton.  78.  88.  119. 

Needham's  Case,  187. 

Nelthorpe  v.  Dorrington,  136. 

Nerot  V.  Burnard,  235. 

Nesbilt  V.  Meyer,  110. 

Newland  v.  Champion,  359. 

Newmarch  v.  Clay,  245.  251. 

Newsome  v.  Coles,  24.  198.  250.  252. 

Nicholls  V.  Chalie,  104. 

V.  Dowding,  191. 

Nicholson  v.  Bownass,  163. 
Nicoll  V.  Glennie,  161. 
Nockells  V.  Crosby,  77. 
Noke  V.  Ingham,  175. 
Nokes,  Ex  parte,  224. 298. 
Nolte,  Ex  parte  57.  314. 
Norden  v.  Williamson,  142. 
Norfolk,  Ex  parte,  179.262. 
Norton  v.  Shakspearc,  295. 
Norway  v.  Rowe,  99.  115. 
Norwich  and  LowestofF  Navigation  Com- 
pany V.  Theobald,  250. 
Notley  V.  Buck,  343. 
Nowland  v.  Gedes,  174. 

O'Brien  v.  Currie,  261. 
Ockenden,  Ex  parte,  333. 
Ogilby,  Ex  parte,  323.  326. 
Ogilvie  V.  Foljambe,  49. 
Ogle  V.  Barnes,  160. 

v^VVrangham,  52. 

Oldknow,  Ex  parte,  312. 
Oliver  v.  Hamilton,  114. 
O'Meally  v.  Wilson,  121. 
Ord  V.  Portal,  132.  140. 
Ormston  v.  Hamilton,  103. 
Orr  V.  Chase,  371. 
Osborne  v.  Harper,  87.  131.  248. 
Ottlcy  V.  Brown,  84.  94. 
Ouchterlony  v.  Easterby,  335. 

Pachelor,  Ex  parte,  264. 
Page,  Ex  parte,  312. 

V.  Hiscox,  129. 

Palmer's  Case,  363. 
Parker,  Ex  por/e,  282.  291. 

V.  Barker,  192.  257. 

■^ V.  Lawrence,  187. 

V.  Pistor,  206. 

V.  Ramsbottom,  336.    238.   324. 


Parkin  v.  Caruthers,  20.  248.  283. 

V.  Fry,  78.  256. 

Parr,  Ex  parte,  281.  3[0. 

Parry,  Ex  parte,  233. 

Parsons  v.  Crosby,  23.  129.  141. 

Paterson  v.  Zachariah.  49,  243.  249. 

Payler  v.  Honiershani,  188. 

Paynter  v.  Houston,  357. 

Peacock,  Ex  parte,  289. 

V.  Peacock,  8. 12. 92.  99. 115.223. 

231. 
Peake,  Ex  parte,  238.  269.  314. 
Pearce  v.  Chamberlain,  4.  220.  221.  350. 

V.  Piper,  97.  227. 

Peele,  Ex  parte,  41.  68.  253. 284. 
Peirse  v.  Bowles,  189. 
Perham  v.  Rayna!,  64.  194. 
Perring  v.  Hone,  127. 156. 
Perry  v.  Hunwicks,  183. 

V  Jackson,  60.64.142. 194. 

Pctherick  v.  Turner,  194. 
Petriev.  Bury,  126, 127. 

:  V.  Han  nay,  82. 

Petty  V.  Janeson,  10.  105.  354. 
Peyton,  Ex  parte,  213. 
Philips  V.  Atkinson,  356. 
V.  Biggs,  86. 


326. 


V.  Wise,  125. 


Pickering  v.  Rigby,  357. 
Pidcock  V.  Kilby,  228. 
Pigott  V.  Bagley,  177.350. 
Pinder  v.  Wilks,  149. 
Pine,  Ex  parte,  291. 
Pinkerton,  Ex  parte,  310.  3 15. 
Pinkney  v.  Hall,  39. 
Pollard  V.  Scholey,  325. 
Poole,  Ex  parte,  265. 
Pope  V.  Haman,  204. 
Porthouse  v.  Parker,  66. 197. 
Postan  V.  Stanway,  172. 
Pott  V.  Gallini,  368. 
Powell,  In  re,  262.  296. 

■—  Ex  parte,  297. 

V.  Layton,  160. 165, 166, 181, 182. 

Pratt  V.  Hutchinson,  30. 
Price  V.  Williams,  103. 
Prickett  v.  Down,  341. 
Primrose  v.  Bromley,  359.  369. 
Prosser  v.  Smith,  260, 
Prolheroe  v.  Forman,  144. 
Proud  V.  Coombes,  101. 
Puleston,  Ex  parte,  346. 
Puller  V.  Roe,  138. 

Quinten,  Ex  parte,338,  339. 

Raba  v.  Ryland,  53. 
Rackstraw  v.  Imber,  75.  224. 
Radenhurst  v.  Bates,  72, 132. 
Ramsbotham  v.  Cator,  307. 
Ramsbottom  v.  Duck,  307. 

V.  Lewis,  50.  307. 


Randleson,  Ex  parte,  28. 
Rapp  V.  Latham,  55.  147. 


TABLE  OF   CASES. 


Xlll 


Raven  v.  Dunning^,  199. 

Rawson,  Ex  parte,  263,  264,  265, 266. 

Ray  V.  Davies,  345. 

Raynard  v.  Chase,  158. 

Read,  Ex  parte,  175.  329. 

V.  Bowers,  114. 

Redoubt  v.  Brough,  332. 
Reed,  Ex  parte,  292. 

V.  Cole,  29. 

V.  Sowerby,  295. 

V.  White,  156.  244. 

Reeve,  Ex  parte,  291.  294.  321. 

V.  Parkins,  227. 

Reid  V.  Hollinshead,  14,  15.53. 
Revett  V.  Browne,  185. 
Rex  V.  Alnion,  161. 

V.  Cawood,  30. 

V.  Cole,  261. 

V.  Dodd,  2,3.17.30. 

V.  Hardwicke,  194. 

V.  Holt,  250. 

V.  Lafone,  199. 

V.  Manning,  161.  215. 

V.  Marsh,  161. 

V.  Pearse,  161. 

V.  Powell,  169. 

V.  Rock,  216. 

V.  Sanderson,  205.  216. 

V.  Stratton,  30. 

V.  Topham,  161. 

V.Webb,  30. 

V.  Whitstable  Company,  93. 

V.  Young,  171. 

Rice  V.  Shute,  17.  134.  166.-182.  184. 
Richards  v.  Heather,  173. 
Richardson,  Ex  parte,  16.  272. 

V.  Gooding,  322. 

V.  Griffin,  345. 

Richmond  v.  Heapy,  69.  121. 

Ridley  V.  Taylor,  39.  45,  46. 149.  201. 

Rigden  v.  Pierce,  234. 

V.  Vallier,  33. 

Ring,  Ex  parte,  292. 
Ripley  v.  Waterworth,  35. 
Roberts,  Ex  parte,  68.  265.  347. 

.  V.  Hardy,  121. 

Roberts  v.  Kuflin,  101. 
Robertson  v.  Wilkinson,  162.  178. 
Robey  v.  Howard,  6.  168. 
Robinson,  v.  McDonnell,  277. 

V.  Read,  244. 

Robson  V.  Curtis,  74.  77. 

Rogers  v.  Imbleton,  160. 

Rogers  v.  Mackenzie,  316. 

Rolfe,  Ex  parte,  57. 

Rooth,  V.  Quin,  49.  194.  249,  250. 

Rordasnz  v.  Leach,  132. 140. 

Rose  V.  Hart,  333. 

Rothwell  V.  Humphreys,  37. 

Rowe  V.  Wood,  103. 

Rowlandson,  Ex  parte,  18.  238.  255.265. 

268,  269,  270.  275.  286.  288.' 
Rowley  v.  Home,  250. 


Rowton,  Ex  parte  304. 

Roxby,  Ex  parte,  281. 

Ruffin,  Ex  parte,  203.  209. 228. 236. 254. 

268,  269. 273. 275.  352. 
Russell  V.  Austwick,  108. 

V.  Langstaffe,  47. 

Rutherford,  Ex  parte,  309. 
Ryal  V.  Larkin,  332. 

V.  Rowles,  275.  301.  322. 

Ryan  v.  Mackmath,  225. 

Sadler,  Ex  parte,  314. 

Sainstry  v.  Grammer,  107. 

Saint  Barbe,  Ex  parte,  292,  293. 

Saltoun  V.  Houston,  17.  246, 

Sampson  v.  Burton,  333. 

Sanders  v.  King,  100. 

Sandilands  v.  Marsh,  38.  55,  56.  58. 151. 

Sangster  v.  Mazarredo,  192. 

Saville  v.  Roberts,  142.  162. 

V.  Robertson,  1.5. 16. 151. 153. 193. 

Saunderson  v.  Hudson,  173. 
Sayer  v.  Bennet,  222.  229. 
Shack  v.  Anthony,  75. 
Scott  V.  Franklin,  345. 

V.Godwin,  134.  166.  170. 

V.  Scholey,  204. 

Scudamore  v.  White,  103. 

Season  v.  Gilbert,  178. 

Sedgworth  v.  Overend,  129.  133.  137. 

Seeley  v.  Boehm,  115. 

Selkrig  v.  Davies,  35.  349. 

Senhouse  v.  Cliristian,  115. 

Sergeant,  Ex  parte,  82. 

Sharp  v.  Warren,  77. 

Sharpe,  In  re,  277. 

Shaw,  Ex  parte,  265. 

Sheppard  v.  Baillie,  166. 

Sherman  v.  Sherman,  102, 103. 

ShirrefF  v.  Wilks,  44.  56. 

SifFkin  v.  Walker,  154. 

Sillitoe,  Ex  parte,  291.  293. 

Simons  V.  Smith,  200. 

Simpson,  In  re,  262. 

Ex  parte,  310. 

V.  Bloss,  85. 

V.  Vaughan,  369. 


Simson  v.  Cooke,  124.  244.  364. 

V.  Ingham,  244,  363,  264. 

Skaife  v.  Jackson,  43.  61,  62.  252. 

Skinner  v.  Stocks,  128.  139. 

Skipp  V.  Harwood,  205. 

Slark  V.  Highgate  ArchwayCompany,  28. 

Slater,  Ex  parte,  187. 

Slaughter  v.  Cheyne,  295. 

Sleech's  Case,  158.  243.  331.  363.  366. 

Slingsby's  Case,  126,  127. 

Slipper  V.  Stidstone,  139.  190. 

Slow,  Ex  parte,  269. 

Smith,  Ex  parte,  107.210.228.233.  264. 

266.  272.289.  298.  301.  314.  318.  320. 

327. 346. 
V.  Bailey,  39. 


XIV 


TABLK    OF    CASES. 


Smith  V.  Barrow,  73.  76.  132.  358. 

V.  Dc  Silva,  32.  228.  301. 

V.  Fromont,  113.  115. 

V.  Fugc,  193. 

V.  Goddard,  139.  307.  335.  344. 

V.  Jameson,  156.  285. 

V.  Maplebuck,  188. 

V.  Oriel,  91.  306.  346. 

V.Smith,  34. 232. 

V.  Stoke?*,  91.  228.  306.  309.  345. 

V.  Watson,  10.  14.23. 278.  280. 

Snaith  v.  Burridge,  54. 

V.  Mingay,  47. 

Snellgrove  v.  Hunt,  137. 342. 
Solly  V.  Forbes,  188. 
Solomon,  Ex  parte,  288. 
Solomons  v.  Medex,  118. 

South  Carolina  Bank  v.  Case,  41.  154. 
South  V.  Tanner,  169,170. 
South  wood  V.  Taylor,  334. 
Spalding  V.  Mure,  172. 
Sparrow  v.  Chisman,  69.  121. 
Spencer  v.  Billing,  192,  193.  258. 

V.  Spencer,  256. 

Stables  v.  Eley,  24.  198.  252. 
Stacey  v.  Fredcrici,  142. 
Stacy  V.  Decy,  139. 
Staff,  Ex  parte,  260. 
Stanborough,  Ex  parte,  Sl'i. 
Standgroom,  Ex  parte,  301. 
Stanifbrlh  v.  Fellowes,  139.  335. 
Stansfield  v.  Levy,  178. 
Staple?,  In  re,  284. 
Stead  V.  Salt,  38.  60.  67. 
Steel  V.  Western,  128. 
Steers  v.  Leshley,  83. 
Steighlitz  v.  Egington,  58,  59. 
Stent  V.  Bailis,  30. 
Stephens,  Ex  parte,  336,  337. 
Stephenson  v.  Chiswell,  337.  359. 
Stevenson's  Case,  246. 
Stiles,  Ex  parte,  296. 
Stokes  v.  Stokes,  61. 
Stone,  Expaite,  266. 

V.  Marsh,  55.  148. 

Stonehousc  v.  De  Silva,  343. 
Storer  v.  Hunter,  272.  274. 
Storks,  Ex  parte,  261. 
Story  v.  Lord  Windsor,  115. 
Stoveld,  Ex  parte,  232.  327. 
Strange  v.  Lee,  123,  124. 
Strangford  v.  Green,  60.  68. 
Streatfield  v.  Halliday,  261.  345. 
Street  v.  Rigby,  103,  104. 
Strother  v.  Willan,  193. 
Strutt,  Ex  parte,  295. 
Stuart  V.  Marquis  of  Bute,  35. 
Sullivan  v.  Greaves,  85.  159. 
Sumner  v.  Powell,  371. 
Sutton  v.  Clarke,  166. 
Swan  v.  Steele.  37.  39.  43.  48. 
Sykes  V.  Bauwens,  165. 


Taitt,  Ex  parte,  315.  330. 
Tanner  v.  Hague,  210. 
Tarleton  v.  Backhouse,  257. 

V.  Tarleton,  247. 

Taltersall  v.  Groote,  72.  89.  104. 107. 
Taylor,  Ex  parte,  310.  315.  323.  326. 

V.  Fields,  144.  205.207.  208.  299. 


321. 


■  V.  Glassbrook,  15. 
—  V.  Harris,  168.  180. 
v.  Haylin,  101. 


Taylor  v.  Higgins,  82 

Tcague  v.  Hubbard,  78.  88. 119. 

Teed  V.  Elworthy,  126.  128. 138. 

Tenant  v.  Elliott,  86. 

Tench  v.  Roberts,  15. 

Terrell,  Ex  parte,291.  321.  323.  327. 

Thomas  v.  Clarke,  40. 

V.  Courtney,  188. 

V.  Eraser,  369. 

V.  Heathorn,  168. 

Thomason  v.  Frere,  58.  127.  139.  306. 

341. 
Thompson,  Ex  parte,  265. 

V.  Brown,  244. 

V.  Charnock,  89.  104. 

V.  Ryan,  234. 

Thompson  v.  Thompson,  86. 
Thornton  v.  Dixon,  33.  35.  349. 

v.  Illingworth,  177. 

V.  Proctor,  105. 

Thring  v.  Edgar,  100. 

Thwaites  v.  Richardson,  194,  195. 

Ticknell  v.  Short,  102. 

Tinkler  v.  Walpole,  193. 

Tissard  v.  Warcup,  173. 

Titner,  Ex  parte,  269, 

Tobin,  Ex  parte,  265,  266.  331. 

Tooker's  Case,  60. 

Townsend  v.  Devaynes,  35.  349. 

Trigwell,  Ex  parte,  Sid. 

Tupper  V.  Haj'thorne,  53. 

Turner  v.  Davics,  189. 

Twiss  V.  Massey,  262. 

Twogood  Ex  parte,  338. 

V.  Swanton,  102. 

Twopenny  v.  Young,  188. 
Tyler  v.  Duke  of  Leeds,  211. 

Vansandau  v.  Moore,  94.  96.  99.  110. 
Venning  v.  Lcckie  71.  73. 
Vernon  v.  Blackerby,  96. 

v.  Jcfferys,  126. 

V.  Vawdry,  101,  102. 


Vicary's  Case,  64. 194. 
Vice  V.  Lady  Anson,  13.  155. 

V.  Fleming,  52.  198.  249. 

Voguel,  Ex  parte,  312. 
Voyce  V.  Voyce,  91. 

Vulliamby  v.  Noble,  219.  221.  248.  340. 
351.  359.  361,  362.  370. 

Underbill  v.  Horwood,  368. 


TABLE    OF    CASES. 


XV 


Upham,  Ex  parte,  266. 
Usborne,  Ex  parte,  250.  276. 
Usher  v.  Dauncey,  47. 
Usparicha  v.  Noble,  121. 

Wadeson  v.  Richardson,  253. 

WagstafF,  Ex  parte,  334. 

Wainwright  v.  Waterman,  351. 

Wait,  In  re,  204.  228.294.  309.  321,  .322. 

Waithman,  Doe  d.,  v.  Miles,  92.  224. 

Waland  v.  Elkins,  150.  161. 

Wales,  Princess  of,  v.  Earl  of  Liverpool, 

357. 
Walker  v.  Consett,  101. 

V.  Harris,  71. 

Want  V.  Reece,  248. 

Ward  V.  Haydon,  199. 

Wardc's  Case,  361. 

Warner  v.  Barber,  260.  262,  263. 

Warrington  v.  Norton,  266. 

Waters  v.  Taylor,  95,  96.  104.  111.  114. 

204.206.221,222.227. 
Watkins,  Ex  parte,  319. 
Watson,  Ex  parte,  18.  23.  125.  179.  261. 
262.  285.  327. 

V.  Medex,  329. 

Watts  V.  Brookes,  94. 
Waugh  V.  Carver,  1.  16,  17.  20.  23.  80. 
Waymill  v.  Read,  117. 
Weal  V.  King,  184. 

Weale  v.  West  Middlesex  Water  Com- 
pany, 212. 
Weaver  v.  Prentice,  193. 
Webb,  In  re,  81. 
Webb  V.  Brooke,  5.  84. 
Webber  v.  Tivill,  103.  125.  131. 
Webster  v.  Webster,  109.  221.  357.  362. 
Weld  v.  Bonham,  212. 
Welfordv.  Liddell,  102,  103. 
Waller  v.  Governors  of  Foundling  Hos- 
pital, 199. 
Wellington  v.  Macintosh,  103. 
Wells  V.  Masterman,  39,  40.  43.  46. 

V.  Ross,  179. 

Wenslay,  Ex  parte,  290. 

West  V.  Skip,  31,  32.  105.  205.  236.  273. 

298.  321. 
Weston  V.  Barton.  123. 
Weymouth  v.  Boyer,  212,  213. 
Whartonv.  May,  100,  101. 

v.  Walker,  65. 

Whateley  v.  Menheim,  191. 
Wheatley,  Ex  parte,  283. 
Wheeler,  Ex  parte,  265.  270. 
Whelpdale's  Case,  169. 
Whistler  v.  Webster,  287. 
Whitcomb  v.  Whiting,  64.  195. 
Whitmore  v.  Wilks,  199. 
Whitwell  V.Thompson,  259.  307. 
Whyte  V.  O'Brien,  336. 


Wigan  V.  Fowler,  28. 
Wightman  v.  Townroe,  16. 
Wilbran,  Ex  parte,  229. 
Wilby  V.  Pistor,  357. 
Wilks  V.  Back,  39. 
Wilkins  V.  Fry,  .342. 
Wilkinson,  Ex  parte,  347. 
V.  Frasier,  19. 


Willelt  V,  Chambers,  6.  55.  147. 
Williams,  Ex  parte,  4.   228.  231.  238. 

253,  254.  268,  269.  273. 275,  276.  285. 

351. 

V.  Attenborough,  115. 

V.  Bingley,  108. 

V.  Jones,  9. 

V.  Keats,  24. 50. 198. 250. 252. 

V.  Nunn,  155. 

V.  Rawlinson,  364. 

V.  Thomas,  48. 

V.  Walsby,  59. 

V.  Williams,  107. 

Williamson  v.  Johnson,  39. 
Willis  V.  Dyson,  52.  149. 

V.  Jernegan,  100.  102. 

Willock,  Ex  parte,  ^\&. 
Wilsford  V.  Wood,  131.  140. 
Wilson,  Ex  parte,  347. 

V.  Coupland,  65. 

V.  Greenwood,   114.  228.  231. 

300.  351. 

V.  Rcddall,169. 


Windham  v.  Paterson,  298. 

Wish  V.  Small,  19. 

Wood  V.  Braddiek,  64, 65. 197. 

V.  Dodgson,  324. 

Woolley  V.  Batte,  87.  185. 

V.  Gordon,  354. 

V.  Kelly,  211. 

Worthington,  Ex  parte,  262.  281. 
Worton  V.  Smith,  118. 
Wrexham  v.  Huddlcston,  219.222. 
Wright  V.  Hunter,  17.  79. 106.  167.  323. 
V.  Russell,  123. 

Wright&on  v.  PuUan,  49. 

Wyatt  V.  the  Marquis  of  Hertford,  156. 

Wych  V.  East  India  Company,  102. 

V.  Meal.  194. 

Wylic,  Ex  parte,  314. 
Wymer  v.  Kemble,  343. 

Yallop,  Ex  parte,  277.  366. 

Yonge,  Ex  parte,  292.  317.  320.  326. 

York  V.  Blott,  201. 

Yorke  v.  Fry,  100. 

Young  V.  Axtcll,  20,  21, 22,  23, 24. 

V.  Bairner,200. 

V.  Glass,  328. 

V.  Hunter,  152,  153. 

V.  Keighley,  208.  236.  254. 


0^ 


INDEX 


TO  THE  MOST  IMPORTANT  CASES  CITEU  OR  INTRODUCED  BY  THE 
AMERICAN  EDITOR. 


Note.—"  V."  follows  the  name  of  the  plaintiff:  "anrf"  the  name  of  the  defendant. 


Abecl  and  Case  (1  Paige's  Rep.  393)  348. 
Adams  v.  Browiisun  (ITyl.  Rep.  452)194. 
Adams  and  Hunt  (6  Mass.  Rep.  519)  39. 
Adams  and  Haskell  (7  Pick.  59)  74. 
Almond  and  The  Bank  of  Wilmington 

(1  VVhart.  R6p.  169)  213. 
Alsop  V.  Mather  (8  Conn.  584)  16. 
Allaire  and  Munro  (2  Caine's  Ca.  327) 

187. 
Allen  V.  Blanchard  (9  Cow.  Rep.  63)  5. 

199.  350. 
Allen  and  Smith  (18  Johns.  Rep.  245) 

74.  200. 
Allen  V.  Rostaing  (11  Serg.  &-  Rawle, 

3G2)  193. 
Arnes  and  Johnson  (6  Pick.  Rep.  330) 

348. 
Anderson  and   Bowyer  (2  Leigh's  Rep. 

554)  5. 19. 
Andrews  v.  Foster  (2  Penns.  Rep.  160)38. 
Andrews  and  Mereein  (10  Wend. 461)43. 
Anderson   v.  Henshaw   (2  Day's   Rep. 

272)  156. 
Anderson  et  al  v.  Moncrief  (3  Desaus. 

Cha.  Rep.  125)  86. 
Ann  Green,  The  (1  Gallis.  Rep.  274)  120. 
Anonymous  (Tayl.  Rep.  113)  58. 

(2  Hayw.  Rep.  99)  58. 

Anson,    Lady,    and    Vice  (7  Barn.    & 

Cresw.  409)  17. 
Ardley  v.  Russell   (1   P.  A.  Bro.  Rep. 

145)  140. 
Armistead  v.  Butler's  Adin.  (1  Hen.  &- 

Munf.  176)  137. 
Arnold  v.  Camp  (12  Johns.  Rep.  403)  242. 
Armstrong  v.  Hussey  (12  Serg.  &.  Rawle 

315)  250. 
Arnold  and  Dexter  (3  Mass.  Rep.  284) 

105. 
Aehby  and  Lloyd  (2  Car.  &.  Payne  138) 

46. 
Ashby  and  Vere  (10  B.  &  Cresw.  288) 

192. 
Astley  and  The  United  States  (3  Wash. 

C.  C.  Rep.  508)  58.  190. 
Atwater  v.  Fowler  (1  Hall.  180)  74. 
Atwood  et  al  V.  Ratten  bury  (5  Moo.  Rep. 

209) 132. 
Atkinson  v.  Laing  (D.  &  Ryl.  N.  P.  C. 

16)  129. 


Austin  V.  Bostwick  (9  Conn.  Rep.  496) 

64. 
Austin  and  Rice  (17  Mass.  Rep.  197)  18. 

19. 
Austin  V.  Walsh  (2  Mass.  Rep.  401)  129. 

Babbv.Reed  (5  Rawle,  151)  2.  227. 
Bacon  V.  Brown  (1  Bibb's  Rep.  334)243. 
Bacon  and  Pate  (6  Munf.  9)  126. 
Buird  V.  Cochran  et  al  (4  Serg.  &,  Rawle 

397)  43. 
Baird  and  Lee  (4  Hen.  &  Munf.  453) 

246. 
Bailey  v.  Clark  (6  Pick.  Rep.  372)  9. 
Baker  v.  Jewell  (6  Mass.  Rep.  460)  129. 

133. 
Baker  and  Conney  (7  Har.  &  Johns.  Rep. 

28. 
Baker  et  nl  v.  Wetmore  et  al  (9  Johns. 

Rep.  307) 149. 
Baker  v.  Stackpoole  (9  Cow.  Rep.  420) 

196. 
Barber  v.  Hartford  Bank  (9  Conn.  Rep. 

407)  205. 
Barker  et  al  v.  Elake  (11  Mass.  Rep.  16) 

157. 
Baker  and  Coursey  (7  Harr.  &  Johns. 

28)  38. 
Ballow  V.  Spencer  (4  Cow.  Rep.  163)  6. 
Bank  U.  States  and  Winships  (5  Pet.  S. 

C.  Rep.  529)  38. 
Barger  v.  Collins  (7  Har.  &  Johns.  213) 

126. 
Barrett  and  Chase  (4  Paige's  Rep.l48)19. 
Baldwin  v.  Lawrence  (2  Sim.  &,  Slu.  26) 

213. 
Barnet  v.  Watson  (1  Wash.  Rep.  372) 

126. 
Barrcll  and  Gilbert  &  Story  (2  Conn. 

Rep.  665)  65.  196. 
Bartlclt  V.  Merrill  (6  Pick.  Rep.  46)  32. 
Barstow  v.  Gray  (3  Greenl.  Rep.  409) 

128.  141.      . 
Barbour  and  Mills  (4  Day  430,  54)  37. 
Barker  and  Smith  (IFairf.  Rep.  458)  236. 
Bartlett  and  Miller  (15  Serg.  &  Rawle, 

13)  18. 
Basse  et  al  and  Gerard  (  1  Dall.  119)  58. 
Bates  et  al  and  Doty  (11   Johns.  Rep. 

544)  39.  47. 


XVlll 


INDEX    TO    AMERICAN    CASES. 


Bass  V.  Bass  (6  Pick.  362)  102. 

Baxter  v.  Rodman  (3  Pick.  Hop.  435)  18. 

Bayard  et  al  and    Giatz  et  al  (11  Serg. 

&  Kawlc.  46)  218. 
Banks  and  Hopkins  (7  Cow.  Rep.  650) 

63.  169. 
Barnewel!  and  Graves  (2  Cranch.  419) 

233. 
Barney  v.  Smiih  (4  Harr.  &  Johns.  485) 

131. 
Bartle  v.  Coleman  (4  Pet.  S.  C.  Rep.  184) 

5. 
Baldwin  v.  Lord  (6  Pick.  Rep.  348)  138. 

236.  275. 
Bain   and  Coffin  (10  Moo.  Rep.  341)  77. 
Batty  V.  McCandie  (3  Carr,  &  Payne. 

202)  25. 
Bcntley  v.  Smith  (3  Caine's  Rep.  170) 

125. 
Beach  v.  Hodgkiss  (2  Conn.  Rep.  425) 

70.  74. 
Beardlcy  et  al  and  Johnson  (15  Johns. 

Rep.  4)  63. 
Becker  v.  Kirk  (cited  2  Caines'  Ca.  5)  58. 
Beding  v.  Pitkin  (2  Caines'  Rep.  147)  84, 
Bennett  and  New  York  F.  I.  Co.  (5  Conn. 

Rep.  574)  46.  56. 
Bell  V.  Newman  (5  Serg.  &  Rawle  86) 

203.  360. 
Bernard  v.  Wilcox  (2  Johns.  Ca.  374) 

128. 
Berkshire  v.    Evans    (4    Leigh's  Rep. 

223)  5. 
Bevan  v.  Lewis  (1  Sim.  Rep.  376)  39. 
Beal  and  Robinson  (3  Yeates  267)  189. 
Bell  V.  Layman  (1  Monroe's  Rep.  40)  91. 
Bell  V.  Morrison  (1  Peter's  Sup.  C.  Rep. 

352)  64.  194. 
Benson  v.  Brown  (10  Wend.  Rep.  258)  2. 
Bixby  V.  The  Franklin  Ins.  Co.  (8  Pick. 

Rep.  86.)  277. 
Binney  and  Bank  U.   States  (5  Mass. 

Rep.  176)  105. 
Bill  V.  Porter  (9  Conn.  Rep.  23)  199. 
Birchet  et  al  v.  Boiling  (5  Munf.  442) 

110. 
Bird  et  al  v.  Caritat  (2  Johns.  Rep.  342) 

127. 
Bird  et  al  v.  Pierpont  (1  Johns.   Rep. 

118)  127. 
-Bishops  and  Livingston  (1  Johns.  Rep. 

290) 157. 
Black  V.  Marvin    (2  Penn's  Rep.  138) 

199. 
Blachly  and  Wiser  (1  Johns.  Cha.  Rep. 

437)  142. 
Blake  and  Barker  et  al  (11    Mass.  Rep. 

16)  157. 
Blackburn  v.   McAllister   (Peck's  Rep. 

371)  58. 
Black  and  Smith  (9   Serg.  &   Rawle, 

142)  162. 
Blair  v.  Snover  (5  Halst.  Rep.  153)  129. 


Blanchard  and  Allen  (9  Cow.  Rep.  631) 

5.  199.  350. 
Blogg  and  Holmes  (8  Taunt.  35.  508)  2, 
Bloodgood    and    Kane    (7   Johns.   Cha. 

Rep.  90)  102. 
Bloodgood  et  al  and  Mackay  (9  Johns. 

Rep.  285>-69. 
Blew  V.  Rodgers  (5  Car.  &.  Payne  397) 

241. 
Boardman  v.  Seymour   (  2  Conn.  Rep. 

425  cited)  70. 
Boardman  v.  Gore  et  al  (15  Mass.  Rep, 

339)  48. 
Boardman  v,  Keeler  (2  Vern.  Rep.  65) 

128. 
Bogert  et  al  and   Murray   (14  Johns. 

Rep.  318)4.  74.  81.220. 
Bold's  Surv.  and  Dickinson   (3  Desaus. 

Cha.  Rep.  501)  224. 
Bostwick    and    Austin  (9   Conn.  Rep. 

496)  64. 
Bostwick  V.  Champion  (11  Wend.  508)  9. 
Bonzey  and  Colson  (6  Greenl.  Rep.  174) 

277. 
Bowen  and  The  Bank  of  Rochester  (7 

Wend.  158)  56. 
Bowycr  v.  Anderson    (2  Leigh's  Rep. 

554)  5. 19. 
Boyd  onti  Brisban  f4  Paige's  Cha.  Rep. 

17)  64.  248. 
Boyd  V.  Plumb  (7  Wend.  309)  56. 
Boynton  v.  Page  (13  Wend.  425)  236. 
Boiling  and  Birchet  et  al  (5  Munf.  442) 

110. 
Bond  V.  Hays  (12  Mass.  Rep.  34)  74.  _ 
Boness  Canal  Co.  v.  McAlpine,  Fleming 

&  Co.  (2  Bell's  Comm.  615,  n.  2)  55. 
Bound  V.  Lathrop  (4  Conn.  Rep.  336)  63. 
Bowman  and  Noel  (2  Litt.  Rep.  46)  79. 
Boyer  and  Devoy  (3  Johns.  Rep.  190)153. 
Brady  v.Colhoun  (1  Penns.  Rep.  140.)  33. 
Bracket!  and  Loring  (3  Pick.  Rep.  403) 

66. 
Bradford  v.   Kimberly   (3  Johns.  Cha. 

Rep.  431)  355. 
Brashear  and    Lansdale   (3   Monroe's 

Rep.  330)  6.  33. 
Bray  v.  Fromont  (Mad.  &  Geld.  Rep.  5) 

220. 
Brennan   and   Osborne  (2  Nott  &  Mc 

Cord's  Rep.  427)  14.  23. 
Brewster  and  Dwight  (I  Pick.  Rep.  50) 

14.  150. 
Brewster   v.   Hammett  (4  Conn.   Rep. 

540)  205. 
Brick  et  al  and  Young  et  al  (2  Penn. 

Rep.  663)  74. 
Bridges  v.  Martin  (3  Carr.  &  Payne  83) 

196. 
Bristol  V.  Sprague  (7  Wend.  423)  250. 
Briekhouse  v.  Hunter  (4  Hen.  &  Munf. 

363)  105. 
Brinley  v.  Kupfer  (6  Pick.  179)  74. 


INDEX    TO    AMERICAN    CASES. 


XIX 


Brisban  v.  Boyd  (4  Paige's  Cha.  Rep.  17) 

64.  248. 
Brickell  and  Manning  (2.  Havw.  133) 

252. 
Brio-ham  v.  Eveleth  (9  Mass.  Rep.  .'JSS) 

74. 
Brinckeriioff  et  al   v.    Marvin   tt  al  (5 

Johns.  Cha.  Rep.  320)  2U3. 
Brooks  and  Lowry   (2  McCord's  Rep. 

421  ■)  9. 
Brooking-  et  a  I  and  Bank  of  Kentucky 

(2  Litt.  Rep.  45)  46. 
Brooks  and  Farnham  (9  Pick.  212)  102. 
Brown  and  Bank  of  Orange  (3  Wend. 

Rep.  158)  183. 
Brown  and  Benson  (lOVVcnd.  Rep.  258)2. 
Brown  and  Bacon  (1  Bibb's  Rep.  334) 

243. 
Brown  and  James  (1  Dall.  339)  69. 
Brown  v.  Belches  (1  Wash.  Rep.  8)  179. 
Brown  V.  Duncanson  Sc  Ray  (4  Har.  & 

McHcn.  Rep.  350)  43. 
BrowTi  V.  Cook  (1  New  Hamo.  Rep.  64) 

14. 
Brown  v   Leonard  (2  Chitt.  Rep.  120. 

251. 
Brown's  Ex.  v.  Thompson  (Coxe's  Rep. 

2)  189. 
Brown  and  Whitaker  (11  Wend.  75)  43. 
Brownson  and  Adams  (ITyl.  Rep.  452) 

194. 
Brown   v.   De   Tastet  (Jac.  Rep.  284) 

232. 
Brown    v.  Warham  (3  Harr.  &  Johns. 

572)  182. 
Bruen  v.  Marquand  (17  Johns.  Rep.  58) 

60. 
Brumeaux  and  Moyes  et  al  (3  Yeates, 

30)  194. 
Brush  and  Casey  (2  Caines'  Rep.  293) 

74. 
Brush  and  Clement  (3  Jolms.  Ca.  180) 

58,  187. 
Bryden  v.    Taylor   (2  Harr.  &■  Johns. 

396)  193. 
Buchanans  v.   Curry   (19   Johns.   Rep. 

137)  60. 
Buck  V.  Dunbar  (6  Munf.  54)  138.  340. 
Bulkley  et  al  v.  Dayton  et  al  (14  Johns. 

Rep.' 387)  60.201. 
Bunn  V.  Morris  et  al  (3  Caines'  Rep.  54) 

129. 
Buntee  and   Warree  (1  Ryi.  &-   Dowl. 

106)  200. 
Burnet  Ex.  and  Cocke,  (6  Munf.  464) 

354. 
Burrows  and  Turner  (5  Wend.  541.  8 

Wend.  144)  233. 
Burgfwin  v.  Hostler's  Adm.  (Tayl.  124) 

358. 
Burke   and  Causten  (2  Harr.   fc  Gill, 

295)  77.  355. 
Burke  v.Winkle  (2  Serg.&Rawle,  189)  3. 


Burke  and  Tomlinson   (5  Halst.   Rep. 

(295)  125. 
Burniiam  v.  Stearns  (4  Greenl.  Rep.  84) 

43. 
Burnham  v.  Whittier(  5  N.  Harnp.  Rep. 

334)  39. 
Burr  rt«(/Laverty  (1  Wend.  531)  47. 
IJurns  V.  Hall  (2  Pcnn.  Rep.  984)  125. 
Butler's  Adm. and  Armistead  (1  Hen.  & 

Munf.  176)   137. 
Buyers  and  Cowans  et  al  (Cooke's  Rep. 

53)91. 
Bvrcs   and  Vanduescn  (7  Wend.  268) 
"230. 

Cadet   and  Levy   (17   Serg.  <&   Rawle 

126)  64.  194. 
Cady  V.  Shepherd  (1 1  Pick.  Rep.  400)  58. 
Caldwell  and  Gram  (5  Cow.  Rep.  48;))  61 . 
Caldwell   and  Mortimer  (Kirby's   Rep. 

53)  156. 
Camp  and  Arnold  (12  John.=.  Rep.  409) 

242. 
Camp  and  Bradley  et  al  (Kirby's  Rep. 

77)  184. 

Campbell  V  Messier  et  al  (4  Johns.  Cha. 

334)  79. 
Campbell  et  al  and  Freel  (3  Hay  w.  Rep. 

78)  14.  _     ' 
Campbell's  Ex.  and  Zelie  et  al  (2  Johns. 

Ca.  383)  133. 
Campbell  v.  Matthews  (6   Wend.    Rep. 

557)  244. 
Canfield  et  al  and  Walcot  (3  Conn.  Rep- 

194)  55.  ]  00. 
Carey  and  Ridgeley  (4  Har  &  McHen. 

167)  236. 
Carr  and  Hoxie  (1  Sumn.  Rep.  173)  306. 
Carter  and  CJarkson  (3  Cow.  85)  128 

141. 
Carilat  and  Bird  et  al  (2  Johns.   Rep. 

342)  127. 
Carter  et  al  and  Person,  (3  Murph.  Rep. 

321)  58. 
Carmichacl  and  Lane  (Vern  &.  Scriv. 

380)  199. 
Casey  v.  Brush  (2  Caine's  Rep.  293)  74. 
Case  V.  A  heel  (1  Page's  Rep.  393)  348. 
Causten  v.  Burke  (2  Harr.  &  Gill  295) 

77.  355. 
Caze  and  Lamalire  (1  Wash.  C.  C.  Rep. 

435)  74. 
Chadwick  and  Fanning  (3  Pick.  Rep. 

420)  74. 
Chase  and  Orr  (1  Meriv.  Rep.  729)  53. 

303. 
Chambers  and  Chance  (1    Penn.   Rep. 

384)  126. 
Chase  v.  Barrett  (4  Paige's  Rep.  148)  19. 
Chambers  and  Guhr  et  al  (8  Serg.  & 

Rawle,  157)  209. 
Champion   v.  Mumford   et  al   (Kirby's 

Rep.  170)  38. 


XX 


INDEX    TO    AMERICAN    CASES. 


Champion  anot  Bostwick(llWend.  508)9. 
Champliii    Ex.  v.  Tillcy  et  al  (3  Day's 

Rep.  306)  192. 
Chapin  v.  Coleman  (11  Pick.  Rep.  331) 

194? 
Chapman  and  Everitt  (6  Conn.  347)  14. 
Chapman  ff/jfZ  Nichols  (9  VVend.  454)  59. 
Chase  and  French  (6  (jreenl.  166)  236. 
Chance  v.  Chambers  (1  Penn.  Rep.  314) 

126. 
Chardon  v.  Oliphant  (2  Const.  Ct.  Rep. 

685)  64. 
Chazourne  v.  Edwards  (3  Pick.  Rep.  5) 

43.  45. 
Cheston  v.  Page's  Ex.  (4  Har.  &  McHen. 

466)  252. 
Chick  and  Dennett  (2  Greenl.  Rep.  121) 

162. 
Chiftl'lle  and  Winslovv  (Harp.  Eq.  Rep. 

25)  36. 
Chinn  v.  Respass  (1  Monroe's  Rep.  29)90. 
Childres  v.  Emory  (8  Wheat.  Rep.  669) 

132. 
Cliilderton    v.    Hamraon    (2    Serg.    &, 

Rawle  68)  189. 
Choale  and   Patterson  (7  Wend.    Rep. 

441)64.194. 
Church  V.  Knox  (2  Conn.  Rep.  517)  205. 
Clark  ant/  Baiiy  (6  Pick.  Rep.  372)  9. 
Clark  V.  Holmes  (3  Johns.  Rep.  148)  190. 

159. 
Clark  and  Ketchara  et  al  (6  Johns.  Rep. 

144)  248. 
Clark  V.  Miller  (4  Wend.  628)  128. 
Clay  V.  Grubbs  (1  Litt.  Rep.  22)  90. 
Clarkson  v.  Carter  (3  Cow.  Rep.  86.  128) 

141. 
Clement  v.  Brush,  (3  Johns.  Ca.  180)  58 

187. 
Clementson  v.  Williams  (8  Cranch,  72) 

196. 
Cleveland  and  McGregor  (5  Wend.  475) 

140. 
Coates  V.  Coates  (6  Madd.  Rep.  287) 
Cochrane  et   al   and   Baird  (4  Serg.  & 

Rawle,  327)  43. 
Cope  V.  Warner  (13  Serg.  &  Rawle,  421) 

359. 
Cocke  V.  Burnett's   Ex.  (6  Munf.  464) 

359. 
Cocke  et  al  and  Shelton  (3  Munf.  191) 

63.  194. 
Coe  and  Halls  (4  McCord^s  Rep.  136)  01. 
Coffee  V.   Eastland  (Cooke's  Rep.  159) 

125. 133. 
Coffin  V.  Bain  (10  Moo.  Rep.  341)  77. 
C&gswcll    and    Ki.-by   (1    Caines'    Rep. 

505)  39.      . 
Colt  V.  Tracy  (8  Conn.  Rep.  268)  64. 
Coleman  and  Bartle.  (4  Pet.  S.  C.  Rep. 

184)5. 
Coles  Adm.  v.  Coles   (15   Johns.  Rep. 
159)  35. 


Colhoun  and  Brady  (1  Penns.  Rep.  140) 

33. 
Coleman  and  Chapin  (11  Pick.  Rep.  331) 

194. 
Collins  and  Barger  (7  Harr.  &  Johns. 

213)  126. 
Com.  Bank  v.  Wilkins  (9  Greenl.  Rep. 

.34)  205. 
Conncll ««(/ Mason  (IWhart.  Rep.  381)4. 
Conseqna  and  Willings  (1  Peter's  Rep. 

301) 162. 
Colson  V.  Bonzey  (6  Greenl.  474)  277. 
Coursey  v.  Baker  (7  Harr.  &  Johns.  28) 

55. 
Cook  and  Brown  (1  N.  Hamp.  R.  64)  14. 
Cook  and  Jessup  (1   Halst.  Rep.  434) 

74.  100. 
Cook  onf/ Thompson  (2  South.  Rep.  580) 

91. 
Coons  and  Trimble  (2  Marsh.  Rep.  376) 

58. 
Cooper  V.  Watlington  (2  Chitt.  Rep.  451) 

107. 
Cooper  V.  Watson  (3  Dougl.  Rep.  413)  7. 
Cooper  and  Tuttle  (5  Pick.  414)  43. 
Cooper  and  Monroe  (5  Pick.  Rep.  412)  47. 
Copeland  and  Fisk    (Overt.  Rep.   383) 

63.  194. 

Copestake  and  Low  (3  Carr.  &.  Payne 

300)  140. 
Corps  V.  Robinson  (2  Wash  C.  C.  Rep. 

388)  63.  194. 
Coryell  &.  Co.  and  Taylor  (12  Serg.  & 

Rawle,  243)  60. 
Coster  V.  Murray  (5  Johns.  Cha.  Rep. 

522)  102. 
Corning   and  Heartt   (3  Paige's     Rep. 

566)  100, 
Coulter  and  Stewart  (12  Serg.  &.  Rawle, 

252)  189. 
Course  v.  Prince  (1  Rep.  Const.  Ct.  413) 

74. 
Coursey  v.  Baker  (7  Har.  &  Johns.  28)  38. 
Cowans   et  al  v.  Buyers  (Cooke's  Rep. 

53)  91. 

Cowans  v.  Jackson  (20  Johns.  Rep.  176) 

66.   193. 
Cowle.s  et  al  and  Dougal  (5  Day's  Rep. 

54)  38. 154. 

Coyle  and  Sued  (4  Litt.  Rep.  162)  48. 
Craighead  and  Searight  (Penn.  Rep.  135) 

64.  194. 

Crandall  v.  F.   Denny  &  Co.  (1  Penn. 

Rep.  127)  12,5. 
Crary  and  McFarland  (8  Cow.  253)  55. 
Crane  v.  French  1  Wend.  Rep.  311)  205. 
Cresson  and  Porter  (10  Serg.  &  Rawle 

257)  126.  243. 
Cremer  v.  Higginson  et  al  (1  Mas.  Rep. 

323)  123. 
Crousillat  v.  McCall  (5  Binn.  433)  70. 
Crowder  v.  Robinson  (4  McCord's  Rep. 

579)  51. 


INDEX    TO    AMERICAN    CASES. 


XXI 


Culbcrtson  and  Lewis  (11  Serg.  &  Raw!e 

48)  139. 
Cuinpston  v.  McNair(lWend.Rep.  457)6. 
Cummings  and  Porter  (7  Wend.  172) 

38. 
Cunningham  and  Warner  (3  Dow's  Rep. 

76)  220. 
Curriur  v.  Pennock  (14  Serg.  &  Rawle, 

51)  141. 
Curry  and  Buchanans  (19  Johns.  Rep. 

137)  60. 
Cutler  v.-  Winson  (6  Pick.  Rep.  335)  18. 
Cuyier  v.  Cuyler  (2  Johns.  Rep.  186) 

i87. 

Dacic  V.  John  (1  McClel.  &  Young,  206 ) 

115. 
Dail  and  Mitchell  (2  Harr.  &  Gill.  159) 

12.  128. 
Dallam  and  Kinsman  (5  Monroe's  Rep. 

.384)  133. 
Dare's    Adm.  and   Linney's   Adm.   (2 

Leigh's  Rep.  588)  359. 
Darst  V.  Roth  (4  Wash.  C.  C.  Rep.  471) 

59. 
Dashiell's  Adm.  and  McCullough  (1  Har. 

&  Gill.  96)  236.  360. 
Davenport  v.   Runletl  (3  New   Hamp. 

Rep.  386)  43. 
David  V.  Ellice  (7  Dowl.  &  Ryl.  690) 

157. 
Davidson  and  Garland  (3  Munf.   189) 

58. 
Davis  and  Peters  (7  Mass.  Rep.  121) 

131. 
Davis  and  Salmon  &  Brown  (Binn.  375) 

60. 
Davis  v.  Smith  (4  Greenl.   Rep.   339) 

102. 
Davis  Ex.  v.  Tulton  (1  Overt.  Rep.  121) 

246. 
Dayton  and    Skinner   (19  Johns.  Rep. 

513)2.58.226. 
Dayton   et   al    and   Bulkley  et   al    (14 

Johns.  Rep.  387)60.  201. 
De  Bernales  and  Cosio  ct  al  (2  Carr  &. 

Payne,  266)  2. 
De  Camp  and  Holmes  (1  Johns.  Rep. 

34)131. 
Do  Gront  and  Marshall  (  1  Caine's  Ca. 

123)  .359. 
Deloney  v.   Hntcheson  et  al  (2  Rand. 

Rep.  183)  33.  36. 
Dennct  v.  Chick(2  Grccnl.  Rep.  121)  102. 
De  Tastet  and  Brown  (Jac.  Rep.  284) 

232. 
De  Wolf  and  Thorndike  (6  Pick.  Rep. 

120)  32. 
Denny  &  Co.  and  Crandall  (1    Penn. 

Rep.  137)  125. 
Denton  v.  Noyes  (6  Johns.  Rep.  296) 

178. 
Depeyster  and  Wheelwright  (1  Johns. 

Rep.  471)  135. 


Devcau  «St  Fowler  (2  Paige's  Rep.  400) 

236. 
Devoy  and  Boyer  (3  Johns.  Rep.  190) 

153. 
Dexter  v.  Arnold    (11   Pick.   Rep.  11) 

105. 
Dickerson  et  al  v.  Walker  et  al  (2  Hayw. 

23)  58. 
Dickerson  and  Gilbert  (7  Wend,  449) 

90. 
Dickinson  v.  Bold's  Survivors  (3  Desaus. 

Cha.  Rep.  501)224. 
Dickinson  v.  Legare  et  al  (1  Desaus. 

Cha.  Rep  537)  51. 
Dishman's  Ex.  and  Sale  (3  Leigh's  Rep. 

548)  190.  359. 
Dob  V.  Halsey  (17  Johns.  Rep.  40)  9. 14. 

39.  125. 
Doggett  and  Halliday  (6  Pick.  359)  125. 

133. 
Dolman  v.  Orchard  (2  Carr.  &  Payne, 

104)  2.3. 
Donaghe's  Ex.  and  Williams  (1  Rand. 

Rep.  300)  162. 
Donald  &  Co.  and  Totty's  Ex.  4  Munf. 

430)  126. 
Donally  et  al  and  Edgar  (2  Munf.  387) 

34. 
Donaldson  and  Stiles  (2  Dall.  Rep.  264) 

102. 
Dorsey's  Ex.  v.  Dorsey's  Adm.  (4  Har.  &• 

McHen.  Rep.  231)  348. 
Dorwin  and  Woodford  (3  Verm.  Rep.  82) 

50. 
Doremus  v.  Scldon  (19  Johns.  Rep.  213) 

87. 
Doty  V.  Bates  et  al  11  Johns.  Rep.  544) 

39.  47. 
Douglass  and  Miller  (14  Fac.  Coll.  154) 

43. 
Douglass,  Heron  &.  Co.  v.  Hair  (6  Fac. 

Coll.  57.  2  Bell's  Com.  623)  2.  17. 
Dougall  V.  Cowles  et  al  (5  Day's  Rep. 

511)  38.  154. 
Dower  v.  Greenslade  (6  Barn,  «&  Cresw, 

635)  6. 
Downey  v.  The  Bank  of  Green  Castle 

(13  Serg.  v"t  Rawle,  288)  162. 
Drake  v.  Elwyn  (1  Caine's  Rep.  184) 

.38,  191, 
Drydcn  and  Purviance  (3  Serg,  &  Rawle 

402) 179, 199. 
Drinker  and  Ross  (2  Hall's  Rep.  415) 

14. 
Dubois  V.  Roosevelt  (4  Johns.  Rep,  262. 

n)43. 
Duberry  and  Walker  et  al  (1   Marsh. 

Rep.  189)  196. 
Dunbar  v.  Buck  et  al  (6  Munf,  34)  138. 

340. 
Dunch  and  McComb  (2  Dall.  73)  205. 
Duncanson  &-  Ray  and  Brown  (4  Har. 
&,  McHen.  Rep.  360)  43. 


XXll 


INDEX    TO    AMERICAN    CASES. 


Duncan  v.  Lyon  (3  Johns.  Cha.  Rep. 

391)  69.  335. 
Dunham  .V.  Gillis  (8  Mass.  Rep.  462) 

70. 
Dunham  v.  Murdock  (2  Wend.  Rep.  554) 

205. 
Dunlap  &  Co.  and  Scott  &  Co.  2  Munf. 

394)  126. 
Durant  and  Lamb  et  al  (12  Mass.  Rep. 

56). 37. 
Dwight  V.  Brewster  (1  Pick.  Rep,  50) 

14.  150, 

Eastland  and  Coffee's  (Cooke's  Rep.  159) 

125.  133. 
Eaton  V.  Taj  lor  et  al  (10  Mass.  Rep.  54) 

251. 
Eden  and  Stewart  (2  Caines'  Rep.  121) 

187. 
Edgar  v.  Donaliy  et  al  (2  Munf.  387)  34. 
Edwards  and  Chazourne  (3  Pick,  Rep. 

5)  43.  45. 
Edwards  and  Smith  (2Har.  &  Gill  411) 

15. 
Egberts  v.  Wood  (3  Paige's  Rep.   517) 

51.  236. 
Eichelbcrgcr  and  Scholefield  (7  Pet.S.  C. 

Rep.  586)  213. 
EWery  and  McLanahan  (3  Mason's  Rep. 

269)252. 
Ellice  and  David  (7  Dowl.  &  Ryl.  690) 

157. 
Ellis  and  Peck  (2  Johns.  Cha.  Rep.  131) 

86.  106. 
Elwyn  and  Drake  (1  Caines'  Rep.  148) 

38.  191. 
Emien  and  McCarty    (2  Dall.    277.  2 

Yeates  199)  205. 
Emory  and  Childress  (8  Wheat.  Rep. 

669)  132. 
Ensworth   and    Evernghim  (7   Wend. 

326)  44.  61. 
Eskridge  and  Tuttle  (2  Munf.  330)  59. 
Evans  and  Berkshire  (4  Leigh's  Rep. 

223)  5. 
Evclcth   and  Brigham   (9    Mass,   Rep. 

538)  74. 
Everitt  v.  Chapman  (6  Conn.  Rep.  347) 

14. 
Evertson  and  Westerlo,  (1  Wend.  Rep. 

532)  5. 
Evernghim  v.  Ensworth  (7  Wend  326) 

44.  61. 

Farrand  and  Whiting  (1  Conn.  Rep.  60) 

240. 
Farnham  v.  Brooks  (9  Pick.  212)  102. 
Farr  v.  Smith  (9  Wend.  338)  90. 
Fairchild  v.  Holly  (10  Conn.  Rep.  175) 

244. 
Feiichy  v.  Hamilton  (1  Wash.  C.  C.  Rep. 

491)  152. 
Fanning  V.  Chad wick(Pick.  Rep.  420)74. 


Fawcett  v.  Wrashall  (2  Carr  &.  Payne 

305)  199. 
Feltz  and  Simpson  (1    McCord's  Cha. 

Rep.  219)  10.  14.  18.  105. 
Fenner  and  Karthaus  (2  Peter's  Sup.  Ct. 

Rep.  222)  60. 
Fenwick  and  Moore  (Gilm,  Rep,  214) 

188, 
Ferris  and  Wilkes  et  al  (5  Johns,  Rep. 

335)  187. 
Ferris   et  al  and  Whitney  (10  Johns. 

Rep.  66)  194. 
Ferry  v.  Henry  (4  Pick.  Rep.  75)  14. 
Fisher  et  al  and  Shubrick's  Ex.  2  De- 

saus.  Cha.  Rep.  1 18)  17. 
Fisher's  Ex.  v.  Tucker's  Ex,  (1  McCord's 

Cha.  Rep.  170)  64.  251. 
Fisk  V.  Copeland  (Overt.  Rep.  383)  63, 

194. 
Fitzsimons    and    Wallace    (Dall.   248) 

131. 
Flagg.  V  Upham  (lO  Wend.  147)  43, 
Fleming  and  Vice  (Young  &  Jerv.  227) 

52. 
Fietcher   v.   Pollard  (2  Hen,  &.  Munf, 

544)  60.  105, 
Fletcher  ci  al  and  Pourie  et  al)  2  Bay's 

Rep.  146)  137. 
Flournoy  and  Woody  (6  Munf.  406)  55. 
Foltz  V.  Pourie  et  al  (2  Desaus  Cha.  Rep. 

40)  49. 
Foot  V.  Sabin  (12  Johns.  Rep.  154)  56. 
Ford  and  Law  (2  Paige's  Rep,  310)  51. 

114.231. 
Forde  v.  Heron  (4  Munf.  316)  35. 
Forest  v.  Wain  (4  Yeates,  337)  240. 
Forrest   and  Van  Ness  (8  Cranch,  30) 

77. 
Foster  v,  Andrews  (2  Penns,  Rep.  160) 

38. 
Fowler  and  Atwater  (1  Hall.  180)  74. 
Fowler  and  Deveau  (2  Paige's  Rep.  400) 

236, 
Foxcroft  and  Harding  (6  Greenl.  76) 

32, 
Foyles  and  Barry   (1  Peter's  Sup,  Ct, 
'    Rep.  311)  182. 

Francis,  The  (1  Gailis.  Rep  614)  120. 
Franklin    v.  Robinson    (1    Johns.  Cha. 

Rep.  157)  355. 
Frccl  V.  Campbell  et  al  (3  Hayw.  Rep. 

78)  14. 
Franklin  Ins.  Co.  and  Bixby  (8  Pick. 

Rep.  86)  277. 
French  v.  Chase  (6  Greenl.  166)  236. 
French  and  Crane  (1  Wend.  311)  205. 
Freshfield  and  Lloyd  et  al  (2  Carr  & 

Payne  325)  55. 
Fremont  and   Bray   (Mad    &  Geld.  5) 
220. 

Gaine  et  al  and  Lansing  (2  Johns.  Rep. 
300)  42. 


INDEX    TO    AMERICAN    CASES. 


XXIU 


Galway,  Lord,  v.  Matthew  (1  Camp.  403) 

52. 
Gardiner    v.   Levaud    (2   Yeates    185) 

199. 
Garland  v.  Davidson  (.3  Munf.  189)  58. 
Garnett  et  al  v.  Handloy  (7  Dowi.  &  Ryl. 

144.     4  B.  &.  C.  664)  75. 
Garell  v.  IJanna  (5  Har.  «fc  Johns.  412) 

233. 
Gcddes  and  Simpson  et  al  (2  Bay's  533) 

64.  196.  212. 
Gerard  v.  Basse  et  al  (I  Dall.  119)  58. 
Gibbs  and  Wilson,  2  Johns.  Rep.  280) 

205. 
Gibbons  et  al  and  Manaham  (19  Johns. 

Rep.  109)  87. 
Gilbert  v.  Dickerson  (7  Wend.  449)  90. 
Gill  V.  Kuhn  (6  Serg.  &  Rawle,  337)  9. 

14.  17.  74. 
Giiles  and  Dunham  (8  Mass.  Rep.  462) 

70. 
Gilley  v.  Singleton  (3  Litt.  Rep.  249) 

66. 
Gil  more  v.  N.  A.  Land  Co.  ( 1  Peter's 

Rep.  460)  205. 
Gold  and  Marsh,  (2  Pick.  285)  5.  56. 
Gold  V.  Stafford,  (9  Piek.  533)  132. 
Golding  V.  Vaughan  (2  Chit.  Rep.  436) 

131. 
Goodman  and  Jacobs  (2  Cox's  Ca.  282,- 

3  Bro.  C.  C.  488.  12)  99. 
Goodrich  et  al  and  Tom  (2  Johns.  Rep. 

214)190. 
Goodwin  v.  Richardson  (11   Mas^  Rep. 

464)  33.  35. 
Gore  et  al  and  Boardman  (15  Mass  Rep. 

339)  48.  55. 
Gorham  and  Lyndon    (1    Gallis.  Rep. 

368)  205. 
Gould  v.  Gould   (8  Cow.  Rep.  168,   6 

Wend.  263.)  153,  234. 
Goulding,  Ex  parte,  (2  Glyn  &  Jam. 

Rep.  118)  43. 
Graham  and  Pearpont  (4  Wash.  Rep. 

232)  51. 
Graham  v.   Mulcaster   (4   Bingh.   115) 

345. 
Gram  v.  Caldwell  (5  Cow.  Rep.  489)  61. 
Gram  v.  Scton  (1  Hall's  Rep.  262)  58. 
Gratz  et  al  v.   Bayard  et  al  (11  tSerg.  & 

Rawle,  46)218. 
Graves  V.  Barnewcll  (2Cranch419)  233. 
Graves  v.  Merry  (6  Cow.  Rep.  701)  38. 

250. 
Gray  v.  The  Portland   Bank  (3    Mass. 

Rep.  304)  74. 
Gray's  Adin.  and  Wagoners  (2  Hen.  & 

Munf.  603)  199. 
Gray  and  Barslow  (3  Greenl.  Rep.  409) 

128,  141. 
Green  v.  Green  (Hamm.  Rep.  535)  33. 
Green  and  Russell  (10  Conn.  Rep.  270) 

70. 


Greenslade  v.  Dower  (6  Barn.  &.  Cresw. 

635)  6. 
Greencastic,  Bank  of,  and  Downey,  (9 

Serg.  &  Rawle,  142)  162. 
Gregory  v.  Dodge,  4  Paige's  Rep.  556) 

199. 
Griffith  V.  Willing  et  al  (3  Binn.  317)  69. 
Griswold  v.  VVaddington  (16  Johns.  Rep. 

489)  5.  51.  84.  120. 
Griswold  and  Warner  (8  Wend.   Rep. 

665)  5. 
Grubbs  and  Clay  (1  Litt.  Rep.  22)  90. 
Guhr    et  al    v.   Chambers   (8    Serg.   &. 

Rawle,  157)  209. 
Gurney  and  Patten  et  al  (17  Mass.  Rep. 

182)  135.  160. 

Hack  and  The  U.  States,  (8  Pet.  S.  C. 

Rep.  271)  205.215. 
Hackley  v.  Patrick  (3  Johns.  Rep.  538)64. 
Hadduck   v.   Wilmarth,   (5   JM.   Hamp. 

189)205. 
Hadfcgs  and  Bank  of  Pennsylvania,  (3 

Yeutes  560)  202. 
Had  field  v.   Jameson  (2  Munf.  53)  55. 

160. 
Haffan   and    McBride  (1    Wend.  Rep. 

326)  58.  60. 
Hair   and  Douglass,   Heron  &  Co.   (6 

Fac.  Coll.  57,  2  Bell's   Comm.   623) 

2.17. 
Hall  and  Union  Bank,  (1  Harper's  Rep. 

246)  230. 
Hall  and  White  (3  Pick.  Rep.  291)  64. 
Hall  V.  Hall  (2  McCord's  Cha.  Rep.  302) 

360. 
Hall  V.  Leigh  et  al  (1  Cranch  51)  130. 
Hall  and  Burns  (2  Penn.  Rep.  984)  125, 
Halls  V.  Coe  (4  McCord's  Rep.  136)  61. 
Halliday  v.  Doggett  (6  Pick.  Rep.  359) 

125. 
Halscy  and  Havens  (5  Paige's  Rep.  30) 

51. 
Halsey  v.  Whitney  (4  Macon's  Rep.  232) 

59. 
Halsey  and  Dob.  (17  Johns.  Rep.  40)  9, 

14.  125. 133. 
Halstead  v.  Sclienelzel  (17  Johns.  Rep. 

805)  74. 
Hamcrslcy  v.  Lambert  (2  Johns.  Cha. 

Rep.  508)  359. 
Hamill  v.  Purvis  (2  Penns.  Rep.  177)  56, 
Hamilton  and   Felichy  (1  Wash.  C.  C, 

Rep.  491)  152. 
Hammctt  and  Brewster  (4  Conn.  540) 

205. 
Hammon  and  Childerston  (9  Serg.  &. 

Rawle,  68)  189. 
Handfbrd  v.  McNair  (9  Wend.  68)  59. 
Hankinson  and  Perrine  (6  Halst.  Rep. 

181)  14. 
Handley  and  Garrett  (7  Dowl.  vt  Ryl. 

144.  4  B.  &  C.  644)  57. 


XXIV 


INDEX    TO    AMERICAN    CASES. 


Hanna  and  Hanna  (5  Harr.  &,  Johns. 

412)  233. 
Harding  v.  Foxcroft  (6  Grecni.  Rep.  76) 

32. 
Harding  and  Moreton  (6  D.  Rayl.  275. 4 

B.  &.C.  223)  161. 
Hart  V.  Palmer  (12  Wend.  523)  66. 
Harris  v.  Lindsay  (4  Wash.  C.  C.  Rep. 

98)  156.  243. 
Harraden  and  Jones  (9  Mas.  Rep.  540) 

74. 
Harrif?on  &  Stcrry  et  al  (5  Cranch,  289 

51.  299. 
Hart'v.  Scliaub  (1  Penns.  Rep.  285)  59. 
Hart  and  Ladue  (4  Wend.  583)  138. 
Hartford  Bank  and  Barber  (9  Conn.  Rep. 

407)  205. 
Hartness  et  al  v.  Thompson  et  al  (5  Johns. 

Rep.  160)  177. 
Haskell  V.  Adams  (7  Pick.  59)  74.  _ 
Hastie  et  al  and  Livingston  (2  Caines' 

Rep.  246)  43.  45. 
Hawthorne  and  Kerr  (4  Yeates  170)  245. 
Hawthorne  and  Smyth  (3  Rawle,  355) 

131. 
Haythorn   et  al  v.  Lawson   (3  Carr   & 

Payne,  196)  118. 
Hays  ond  Bond  (12  Mass.  Rep.  34)  74. 
Havens  v.  Hulsey  (5  Paige's  Rep.  30)  51. 
Heartt  v.  Corning  (3  Paige's  Rep.  566) 

100. 
Helsby  v.  Means  (5  Barn.  &  Cresw.  505) 

150. 
Henderson   and   Taylor    (17    Serg.    & 

Rawle,  453)  193.  199. 
Henry  and  Ferry  (4  Pick  Rep.  75)  14. 
Henderson    and    Taylor    (17    Serg.    & 

Rawle,  453)  193.  203. 
Henshaw  and  Anderson  (2  Lay's  Rep. 

272)  156. 
Henshaw  and  Williams  (11  Pick.  79)  74. 
Herkimer,  The  (Stewart's  V.  Adm.  Rep 

23)9. 
Heron  and  Forde  (4  Munf.  316)  35. 
Hess  et  al  v.  Werts  (4  Serg.  &  Rawle 

356)  2.  17. 
Hewes  Surv.  part,  and  Wain  (5  Serg.  & 

Rawle  470)  139. 190. 
Higgins  V.  Holmes  (1  B.  &  Cresw.  74) 

355. 
Higginson  et  al  and  Cremer  (1    Mass. 

Rep.  323)  123. 243. 
Hills  v.  Ross  (3  Dall.  331)  178. 
Hinckley  et  all  and  Storer  (Kirby's  Rep 

170)  38.  359. 
Hobart  v.  Howard  (9  Mass.  Rep.  304) 

245. 
Hodgson  et  al  and  Kirk  (3  Johns.  Cha 

Rep.  400)  52. 
Hodgson    and    Williams   (2   Harr.    &l 

Johns.  474)  58. 
Holden  and  Mountjoys  (Litt.  Sel.  Cases 

447)  92. 


Holly    and    Fairchild  (10   Conn.    Rep, 

175)  244. 
Holmes  V.  Blogg.  (8  Taunt.  35.  508)  2'. 
Holmes  and  McCoun  (4  Litt.  Rep.  389) 

209. 
Holmes  and  Clark  (3  Johns  Rep.  148) 

159. 
Hoxie  v.  Carr.  1  Sumn.  Rep.  174)  33. 
Holmes  v.  De  Camp  (1  Johns.  Rep.  34) 

131. 
Holmes  v.  The  United  St.  Ins.  Co.   (2 

Johns.  Ca.  329)  153. 
Holmes  and  Higgins  (I  B.  &.  Cresw.  74) 

355. 
Holt  and  Pickering  (6  Greenl.  Rep.  160) 

59. 
Hone  and  Perrin  (4  Bingh.  28)  88. 
Hooker  and  Pierson  (3  Johns.  Rep.  70) 

51.60. 
Hopkins  v.  Smith  (11  Johns. Rep.  161^  6. 
Hopkins  v.  Banks  (7  Cow.  Rep.  650)  63. 

196. 
Hortetter  v.  Kaufman  (11  Serg.  &  R. 

146)  162. 
Hostler's  Adm.anc/Burgwin  (Tayl.  124) 

358. 
Hotchkiss  and  Beach  (2  Conn.  Rep.  425) 

70.  74. 
Howard  and  Hobart  (9  Mass.  Rep.  304) 
■  245. 
Hovv-ards  v.  Warfield's   Adm.  (4  Harr. 

&  McHen.  21)  137. 
Howland    and   Mowatt   (3  Day's   Rep. 

353)  250. 
Hoxie  v.  Carr,  (1  Sumn.  Rep.  173)  306. 
Hoy's  heirs  v.  McMurray,  (1  Litt.  Rep. 

365)212. 
Howell  and  Ward  (5  Har.  &  Johns.  60) 

63. 
Hubbell's  Adm.  and  Sells  (2  Johns.  Cha. 

Rep.  397)  106. 
Humphrey's  and  Bank  of  So.  Carolina 

(1  McCord's  Rep.  388)  250. 
Hunter  and  Brickhouse  (4  Hen.  &,  Munf. 

363)  105. 
Hunt,  Adm.  v.  Adams  (6  Mass.  Rep. 

519)  39. 
Hurlburt  and  Kelley  (5  Cow.  Rep.  534) 

12.  250. 
Hussey  and  Armstrong   (5  Cow.  Rep. 

534)  250. 
Hutcheson  and  Deloney  (2  Rand.  Rep. 

183)  33.  36. 

Iby  V.  Vining  (McCord's  Rep.  379)  250. 
Indiano  (the  San  Jose)  (2  Gall.  268)  230. 
Irvine   and   Sutton    et  al   (12  Serg.  & 
Rawle,  13)  57. 

Jackson  and  Cowans   (20   Johns.  Rep. 

176)  66.  193. 
Jackson  and  Pierce  (5  Mass.  Rep.  243) 

104. 


INDEX    TO    AMERICAN    CASES. 


XXV 


Jackson  v.  Robinson  (3    Masons'  Rep. 

138)  32.  153. 
Jackson  and  Winchester  (3  Hayw.  310) 

196. 
Jacobs  V.  Goodman  (2  Cox's  Ca.  282,  3 

Bro.  C.  C.  488  n.)  99. 
Jacques  v.  Marquand  (6  Cow.  Rep.  497) 

39. 
James  v.  Brown  (1  Dall.  339)  69. 
Jameson  and  Hadfield  (2  Munf.  53)  55. 

160. 
Jameson  and  Mandeville  (5  Cranch  286) 

102. 
Jaques  and  Methodist  Episc.  Clmrch  (I 

Johns.  Cha.  Rep.  55)  99. 
Jessup  V.  Cooke  (1  Halst,  Rep.  434)  74. 

100. 
Jewel  and  Baker  (6  Mass.  Rep.  460)  129. 

133. 
John  and  Daci^  (McClel.  &,  Young  206) 

115. 
Johnson  v.  Beardlee  et  al  (15  Johns.  Rep. 

4)  63. 
Johnson  and  Le  Roy  et  al  (2  Pet.  Sup. 

Ct.  Rep.  186)  38.  45.  49. 199,.  248. 
Johnson  v.  Ames  (6  Pick.  Rep.  330)  348. 
Johnson  and  Phelps  (8  Johns.  Rep.  43) 

187. 
Johnson  and  Williamson  (2  Dowl.  & 

Ryl.  Rep.  281)  140. 
Johnson  Adm.  v.  Ozeas  (1  Binn.  191,  4 

Dall.  434)  74. 
Jones'  Case  (Overt.  Rep.  455)  49. 
Jones  and  Harraden  (9  Mass.  Rep.  640) 

74. 
Jones'  Case,(l  McCord's  Cha.  Rep.  170) 
Jones  V.  Nov  (2  Milke  «fc  Keen,  125) 

222. 
Jordan  v.  Wilkins  (3  Wash.  C.  C.  Rep. 

110)  133. 
Joseph,  The  (1  Gallis.  Rep.,454)  120. 

Kalback   and  Thommon  (12   Serg.  «fe 

Rawle,  238)  248. 
Kaffrolh  and  Martin,  (16  Serg.  &  Rawle, 

120)  193. 
Kane  v.  Bloodgood  (7  Johns  Cha.  Rep. 

70)  102. 
Kane  el  al  v.  Scofield  (3  Caine's  Rep. 

368.  39. 
Kane  et  al  and  Van  Reinsdyk  (1  Gallis. 

Rep.  930)  154.  194. 
Karthaus  v.  Ferrer  (2  Pet.  Sup.  Ct.  Rep. 

222)  60. 
Kaufman  and   Hortetter   (11    Serg.  & 

Rawle,  146)  162. 
Keeler  v.  Boardman,  (2  Verm.  Rep.  65) 

128. 
Keeler  and  Wilder  (3  Paige's  Rep.  167) 

236. 
Kelly  V.  Hurlbut  (5  Cow.  Rep.  534)  12. 

250. 


D 


Kcnnan  and  The  United  States  (1  Peter's 

Rep.  168)  125. 
Kennedy  v.  McFadon  (3  Harr.  &  Johns. 

194)  74. 
Kentucky  (Bank  of)  v.  Brooking  et  al 

(2  Litt.  Rrp.  45)  46. 
Kentucky  (Bank  of)  and  McGowan  (5 

Litt.  Rep.  271)  39. 
Keppele  Ex.  of  Keppele  and  Long  (I 

Binn.  123)  359. 
Kerr  v.  Hawthorne  (4  Yeates  170)  245. 
Kctcham  et  al  v.  Clarke  (6  Johns.  Rep. 

144)  248. 
Kimberly  and  Post  Johns.  Rep.  489)  9. 

151. 
Kingsbury  and  Ripley  (I   Swift's   Dig. 

342,  1  Day's  Rep.  150)  39. 
Kingman  v.  Speers  ^7  Mass.  Rep.  235) 

4.  220. 
Kinsman  and  Dallam  (5  Monroe's  Rep. 

384.  133. 
Kirby  v.  Cogswell,  (1  Caine's  Rep.  505) 

39. 
Kirk  and  Becker  (cited  2  Caines'  Ca.  5) 

58. 
Kirk  V.  Hodson  ct  a/(3  Johns. Cha.  Rep. 

400)  52. 
Kirkpatrick    v.  TurnbuU   (Addis.  Rep. 

259)  45. 
Knapp  and  Union  Bank  (3  Pick.  Rep. 

112)  102. 
Knox  and  Church  (2  Conn.  Rep.  516) 

205. 

V.  Summers  (4  Yeates  477)  205. 

Kuhn  and  Gill  (6  Serg.  &  Rawle,  337) 

9.  14.  17.  74. 
Kupfer  and  Brindley  (6  Pick.  179)  74. 
Kyle  V.  Connelly  (3  Leigh's  Rep.  719) 

68. 

Lacy  V.  Walcott  et  al  (2  Dow.  &,  Ryl. 

458)  306. 
Ladue  v.  Hart  (4  Wend.  583)  137. 
Lamalire  v.  Caze  (1  Wash.  C.  C.  Rep. 

435)  74. 
Lamb  et  al  v.  Durant  (12  Mass.  Rep. 

55)  27. 
Lambert  and  Hamersley  (2  Johns  Cha. 

Rep.  508)  359. 
Lane  and  Porter  (8  Johns.  Rep.  177)  153. 
Lane  Ex.  v.  Carmichael  (Vern.  &  Scriv. 

380)  199. 
Lansdale  v.  Brashcar  (3  Monroe's  Rep. 

330)  6.  93. 
Lansing  v.  Gaine  et  al  (2  Johns.  Rep. 

300)  42. 
Lansing  v.  Ten  Eyek  (2  Johns.  Rep.  300) 

250. 
Lansing  V.  McKillup  (7  Cow.  Rep.  416) 

66. 
Laing  ttnd  Atkinson  (D.  &,  Ryl.  N.  P.  C. 

16)  129. 
Lathrop  and  Bound  (Conn.  Rep.  336)  63. 


XXVI 


1N1>EX    TO    AMERICAN    CASES. 


Lawrence  and  Baldwin  (2  Sim.  &  Stu. 

26)  213. 
Lawrence  and  McDennott  (7  Serg.  &. 

Rawlc  438)  35. 
Law  V.  Ford  (2  Paiges'  Rep.  310)  51. 

114.231. 
Lawrence  v.Seebor  (2  Caines'  Rep.  203) 

233. 
Lawson  onrfHaythorne  (3Carr.  &Payne 

18(3)  118. 
Layman  and  Bell  (1  Monr.  Rep.  40)  91. 
Laverty  v.  Burr  (1   Wend.  Rep.  531:  47. 
Lcavitt  V.  Peck  et  al  (3  Conn.  Rep.  124) 

4a.  52. 
Ledyards  rt  al  and  Manhattan  Co.  (1 

Caines'  Rep.  192)  39. 
Lee  V.  Baird  (4  Hen.  and  Munf.  453)  246. 
Legare  et  al  and  Dickinson  (1  Deasaus. 

Ciia.  Rep.  537)  51. 
Leigh  and  Hall  (8,Craneh  51)  130. 
Leonard  and  Brown  (2  Chitt.  Rep.  120) 

251. 
Leonard  and  Whitman  3  Pick.  Rep.  177) 

230.  248.  250. 
Le  Page  v.  .McCrea  1  Wend.  Rep.  164) 

133.  228. 
Le  Roy  et  nl  v.  Johnson  (2  Pet.  Sup.  Ct. 

Rep.  116)  38.  45.  49.  199.  248. 
Lewis  anfi  Bevan  (1  Sim.  Rep.  376)  39. 
Lewis  V.  Culbcrtson  (11  Serg.  &  Rawle, 

48) 139. 
Levy  V.  Cadet  (17  Serg.  &  Rawle,  126) 

64.  194. 
Levaud  and,   Gardiner  (2  Yeates  185) 

199. 
Linderbergcr  and  Wahueslcy  (2  Rand 

Rep.  478)  177. 
Lindsay  and  Harris  (4  Wash.C.  C.  98) 

156.  243. 
Livingston  v.  Bishop  (1  Johns. Rep.  290) 

157. 
Linney's  Adm.  v.  Dare's  Adm.  (2  Leigh's 

Rep.  588)  359. 
Livingston  v.  Hastie  el  al  (2  Caine's  Rep. 

246)  43.  45. 
Li\ir)}rston  V.  Lynch  (4  Johns.  Cha.  Rep. 

673)  132. 
Livingston  v.  RooseveU  (4  Jolms.  Rep. 

255)  37.  55. 
Llovd  et  al  V.  Freshfield  (2  Car.  &,  Payne 

325)  55. 
Llovd  V,  Ashby  (2  Carr.  &  Payne  138) 

46. 
Lord  and  Miller  (11  Pick.  Rep.  11)  105. 
Loll?  v.  Koppele  Ex.  of  Keppele  (1  Binn. 

123)  359. 
Long  v.  Majcstrc  (I  Johns.  Cha.   Rep. 

305)113. 
Loner  and  Walker  (2  P.  A.   Bro.  Rep 

125)  74.' 
Lord  V.  Baldwin  (6  Pick.  Rep.  348)  138. 
236.  275. 
'  Loring  v.  Brackett  (3  Pick.  Rep.  403)  66. 


Low  V.  Copestake  (3  Carr.   &   Payne 

300)  140. 
Lowry  v.  Brooks  (2  McCord's  Rep.  421) 

9. 
Lowthorps  V.  Smith  (1  Hayw.  Rep.  255.) 

91. 
Lovell  et  al  v.  Whitridgc  (1  McCord's 

Rep.  7)  137.189. 
Ludlow  v.  Simond  (2  Caine's  Ca.  1)  59. 
Ludlows  and  Smith  (6  Johns.  Rep.  267) 

194. 
Lyie  V.  Styles  (Wash.  C.  C.  Rep.  224)  51. 
Lynch   and.  Livingston    (4  Johns.  Cha. 

Rep.  673.)  132. 
Lynch  and   Stoughton  (1   Johns.   Cha, 

Rep.  467)  105. 
Lyndon   v.  Gorham  (1  Gall.  Rep.   368) 

205. 
Lyon  and  Duncan  (3  Johns.  Cha.  Rep. 

361)  69.335. 
Ly  )n  and  Taylor  (2  Moo.  (&  Payne.  586.) 

132. 

McAllister   v.    Montgomery  (3  Hayw. 

Rep.  94)34. 131. 
McAllister  and  Blaekburne  (Peck's  Rep. 

371)  58. 
McAlpine,  Fleming  &  Co.  and  Boness 

Canal  Co.  (2  Bell's  Comm.  615,  n.  2)55. 
McBride  v.  Hagan  (1  Wend.  Rep.  3215) 

58.  60. 
McCall  ancZ  Crousillat  (5  Binn.  433)  70. 
McCandy  and  Batty  (3  Carr.  &  Payne 

202)  25. 
McCai  tv  V.  Emlen  (2  Dall.  277, 2  Yeates 

490)  205. 
McCarty  v.  Nixon  (2  Dall.  65  n.)131. 
McCauley  v.  McFarlane  (2  Dcsaus.Cha. 

Rep.  239)  153. 
McClenachan  and  Miller  (1  Yeates  144) 

199. 
McClintee    and  Purviance  (6  Serg.  & 

Rawle  259)  14. 
McComb  v.  Dunch,  (2  Dall.  73)  205. 
McCoun  V.  Holmes  (4 Litt.  Rep.  389. 209. 
McCuUough  V.  Dashiell's  Adm.  (1  Har. 

&,Gill.  96)236.  300. 
McCrca  onrf  Le  Page  (1  Wend.  Rep.  164. 

133.  228. 
MeDermott  and  Lawrence  (7   Serg.  & 

Rawlc  438)  35. 
McDowal  V.  Wood  (2  Nott  &  McCord's 

Rep.  242)  2. 
McFall  et  al  and  Williams  et  al  (2  Serg. 

&,  Rawle,  280)  162. 
McF;«;len  and  Kennedy  (3  Har.  &  Johns. 

194)  74. 
McFarland  v.  Crary  (8  Cow.  253)  55. 
McFarlane  and  McCauley    (2   Desaus. 

Cha.  Rep.  239)  153. 
McGregor  v.  Cleveland   (5  Wend.   475) 

140. 


INDEX    TO    AMERICAN    CASES. 


XXVll 


McGowan  v.  The  Bank  of  Kentucky  (5 

Litt.  Rep.  271)39. 
Mclntyre  v.  Oliver,  surv.  part.  (2  Hawk's 

Rep.  209)  144. 
MiiKillup  and  Lansinor  (7  Cow.  416)  66. 
McKay  and  Mumford   (8   Wend.  442) 

228. 
McLinahan  v.  Ellery  (3  Mason's  Rep. 

26J)  252. 
McLeod  and  Napier  (9  Wend.  Rep.  120) 

252. 
McMurray  and    Hoy's   heirs,   (1  Litt. 

Rep.  335)  212, 
McNair  and  Cuinpston   (I   Wend.  Rep. 

457)  6. 
McNair  and  Hawford  (9  Wend.  68)  59. 
McPherson  v.  Ralhbone  (7  Wend.  216) 

193. 
Mackay   v.  Bloodgood  et  al  (9   Johns. 

Rep.  285)  59. 
Majestre  and  Long  (1  Johns.  Cha.  Rep. 

305)  113. 
Manahun   v.  Gibbons  et   al  (19    Johns. 

Rep.  109)  87. 
Mandeville  v.  Jameson,  (5  Cranch  286) 

102. 
Mandeville  and  Sheehy,  (6  Cranch,  253) 

162. 
Manhattan  Co.  v.  Ledyard  et  al  (ICaines' 

Rep.  192)  39. 
Manning  v.  Brickcll,  (2  Hayw.  23)  252. 
Manufacturer's  and  Mecii.  Bank  v.  Gore 

et  al  (15  Mass.  Rep.  75)  48.  55. 
Manufacturer's  fc  Mechanics'  Bank  v. 

Winship(5  Pick.  Rep.  11)  39. 
Marks  and  Stansbury,  (4  Dail.  130)  178. 
Marquand  and  Bruen,  (17  Johns.  Rep. 

58)  60. 
Marquand  v.  Jacques  (6  Conn.  Rep.  497) 

39. 
Marquand  v.  The  N.  Y.  Man.  Company, 

(17  Johns.  Rep.  525)  228. 
Marshall  v.  De  Groot,  (1    Caines'   Ca. 

123)  359. 
Marsh  V.  Gold  (2  Pick.  Rep.  285)  5.  56. 
Martin   v.'  Vanschaick  (4  Paige's  Rep. 

429)114. 
Marvin  and  Black  (2  Pcnns.  Rep.  138) 

199. 
Martin  v.  Kaffroth  (16  Serg.  &  Rawle. 

120)  193. 
Mason  v.  Connell  (1  Whart.  Rep.  381)  4. 
Mather  and  Alsop  (8  Conn.  584)  16. 
Matthews  and  Campbell  (6  Wend.  557) 

244. 
Martin  v.  Walton  et  al  (1  McCord's  Rep. 

16)  49.  250. 
Martin  v.  Bridges  (3  Carr.  &.  Payne,  83) 

196. 
Marvin  et  al  and  Brinkerhoff  et  al  (5 

Johns.  Cha.  Rep.  320)  203. 
Matthew  and  Lord  Galway,  (I  Camp. 

Rep.  403)  .52. 


Maxcy  and  Ordiorne,  (15  Mass.  Rep.  44) 

63.  194. 
Me3,der  v.  Scott  (4  Vern.  Rep.  26)  139. 

190. 
Meade  V.  Tomlinson  (1  Days  Rep.  148) 

59. 
Mt-ars  and  Helsby  (5  Barn.  &  Crcsw. 

505)  150. 
Merrill  v.  Parker  (6  Grcenl.  41)  64. 
Mercem  v.  Andrews  (10  Wetid.  461  )43. 
Meng  and  Pleasants  (1  Dall.  Rep.  380) 

68. 
Mercer  v.  Sayrc  et  al  (Anth.  N.  P.  Rep. 

119)  64.  196. 
Merscreau  v.  Norton,  (15   Johns.  Rep. 

1U8)  91. 
Merrill  v.  Bartlett  (6  Pick.  Rep.  46)  32. 
Merry  and  Graves  (6  Cow.  Rep.  701)  38. 

250. 
Messier  et  al  and  Campbell,  (4  Johns. 

Cha.  Rep.  334)  79. 
Methodist  Episc.  Church  v.  Jaques,    1) 

Johns.  Cha.  Rep.  65)  99. 
Micklcs  et  at  and  Sandfbrd,  (4  Johns. 

Rep.  224)49.251. 
Mifflm  V.  Smith  (17  Serg.  &  R.  167)  151. 

224. 
Miller  and  Bartlett  (15  Serg.  &  Rawlc, 

137)  18. 
Miller  and  Clark  (4  Wend.  628)  128. 
Miller  V.  Lord  (11  Pick.  11)  106. 
Miller  (Blair)  v.  Douglass  (14  Fac.  Coll. 

154,2  Bell's  Com.  016)43. 
Miller  V.  McClenachan,  (I  Yeates,  144) 

199. 
Miller  v.  Starks  (13  Johns.  Rep.  517)  199. 
Mills  V.  Barbour,  (4  Day,  430)  37. 
Mills  and  Robertson  (2  Har.  <fe  Gill.  98) 

43.  200. 
Minnelt  v.  Whitney  (16  Vin.  Ab.  244)  75. 
Mitchell  V.  Dall.  2  Harr.  &  Gill.  159)  12. 

128. 
Moncrief  o/kZ  Anderson  etal  (13  Desaua 

Cha.  Rep.  125)  86. 
Montgomery  and  McAllister,  (3  Hayw. 

Rep.  94)  34.  131. 
Monroe  v.  Cooper  5  Pick.  Rep.  412)  47. 
Moody    V.  Payne,   (2  Johns.  Cha.  Rep. 

548)  144.  205. 
Moore  and  Ritchie  et  al  (5  Munf.  338.) 

189. 
Moreton  v.  Harding  (6  D.  &  Ryl.  275  4. 

B.  .fee.  223)  161. 
Morris  et  al  and  Bunn,  (3  Caines'  Rep  . 

54)  129. 
Morrison  and  Be'.l  (1  Pet.  Sup.  Ct.  Rep. 

352)  64. 
Mortimer  v.  Caldwell,  (Kirby'a  Rep.  53) 

156. 
Mountjoys  v.  Holden  (Litt.  Sel.  Ca.  447) 

99. 
Mowatt  V.  How  and  (Day's  Rep.  353) 

250. 


XXVlll 


LNDEX    TO    AMERICAN    CASES. 


Moyes  et  al  v.  Bruineaux,  (3  Yeates,  30) 

194. 
Muir  and  Teller,  (2  Penn.  Rep.  740)  194. 
Miilcaster  and  Graham  (4  Bingh.  115) 

345. 
Mumford  and  Murray  (6  Cow.  441)  131. 

229. 
Mumford  v.  McKay  (8  Wend.  442)  228. 
Mumford  and  Nicol  (4  Johns.  Cha.  Rep. 

525)  32.  205. 
Mumford  et  al  and  Champion  (Kirby's 

Rep.  170)38. 
Munro  v.  Allaire  (2  Caines'  Ca.  327)  187. 
Murchie  and  Rose  (2  Call's  Rep.  409) 

138.  192. 
Munn  and  Sigourney  (7  Conn.  Rep.  11) 

33.  234. 
Murray  v.  Bogert  et  al  (14  Johns.  Rep. 

318)  4.  74.81.220. 
Murray  v.  Murray,  (5  Johns  Cha.  Rep. 

70)  127.  262. 
Murray  and  Coster  (5  Johns.  Cha,  Rep. 

522)  102. 
Murray  v.  Mumford  (6  Cow.  Rep.  441) 

131.  229. 
Murdock  cind  Dunham  (2  Wend.  Rep. 

554)  205. 
Muzzy  V.  Whitney,  (10  Johns  .Rep.  226) 

19. 

Nairn  v.  Sir  W.  Forbes  &,  Co,  (2  Bell's 

Com.  vol,  ii,  p.  626)  2. 
Nash  V.  Tinker  (cited  8  Cunn.  587)  16. 
Napier  v.  Rapelje  (9  Wend.  120)  60. 
Nai)ier  v.  McLeod  (9  Wend.  120)  252. 
Nelson  Ex  parte  (1  Cow.  Rep.  417)  177. 
New  halls  and  Woodward  (1  Pick.  Rep. 

.500)  177. 
New  bold  et  al  v.  Sims.  (2  Serg.  &.  Rawle 

40J)  70, 
Newman  and  Bell    (5  Serg.  &  Rawle 

86)  203.  360. 
New   York  Man.  Company  and  Mar- 

quand  (17  Johns.  Rep.  525)  228. 
New  York  Firemen  Ins.  Co.  v.  Bennett 

(5  Conn.  Rep.  574)  46.  56. 
Nichols  V.  Chapman  (9  Wend.  454)  59. 
Nicoll  V.  Mumford,  (4  Johns.  Cha.  Rep. 

525)  32.  205. 
Nisbet  V.  Patton  (4  Rawle  120)  161. 
Niven  V,  Spickerman  et  at   (12  Johns. 

Rep.  401)  71. 
Nixon  and  McCarty  (2  Dall  65,  n)  131 
Noel  V.  Bowman  (2  Litt  Rep.  46)  79. 
Norden  v.  Williamson  (1   Taunt.  377) 

199. 
Norman  v.  Norman  et  al  (2  Yeates,  154) 

199. 
North   Am.  Land  Co.  and  Gil'more  (1 

Peter's  Rep.  460)  205. 
Norton  and  Mersereau  (15  Johns.  Rep. 

180)  91. 


Noy  and  Jones  (2  Milne  tSt  Keen  125) 
222. 

Odiorne  v.  Maxcy  (15  Mass.   Rep.  44) 

63.  194. 
Oliphant   and    Chardon    (2  Const.   Ct. 

Rep.  685)  64. 
Oliver  -et  al  and  Rose  (2  Johns.  Rep. 

365)  86.  187. 
Oliver   surv.    partn.    and  Mclntire   (2 

Hawk's  Rep.  209)  194. 
Oney  and  Shields  (5  Munf.  551)  178. 
Orr  v.  Chace  (1   Meriv.  Rep.  729)  58. 

363. 
Orange,  Bank  of,  and  Brown  (3  Wend. 

Rep.  158)  183. 
Orchard  and  Dolman  (2  Carr.  &  Payne 

104)  23.  251. 
Osborne  v.  Brennan  (2  Nott  &  McCord 

Rep.  427)  14.  23. 
Otis  and  Fix  (5  Pick.  Rep.  38)  193. 
Oxley  and  Tuckers  (5  Cranch  34)  313. 
Ozeas  v.  Johnson  (1  Binn.  191.  4  Dall. 

434)  74. 

Page's    Ex.    and  Cheston   (4  Har.  & 

McHcn.466)252. 
Palmer  and  Hart  (12  Wend.  523)  66. 
Parker  v.  Merrill  (6  Greenl.  41)  64 
Parker  and  Vallett  (6  Wend.  615)  38. 
Parkes  et  al  v.  Danforth  et  al  (16  Mass. 

Rep.  299)  179. 
Pate  v  Bacon  (0  Munf.  219)  126. 
Patrick  and   Hackley   (3   Johns.  Rep. 

538)  64. 
Patterson  v.  Choate  (7  Wend.  441)  64. 

194. 
Patton  and  Nisbet  (4  Rawle  120)  161. 
Patterson  et  al  and  Wallace  et  al  (2  Har. 

&,  McHen.  Rep.  463)  205. 
Patten  et  al  v.  Gurney  (17  Mass.  Rep. 

182)  135.  160. 
Payne  and  Moody  (2  Johns.  Cha.  Rep. 

548)  144.  205. 
Pearpont  v.    Graham    (4   Wash.    Rep. 

232)  51. 
Peck  V.  Ellis  (2  Johns.  Cha.  Rep.  131) 

86.  106. 
Peck  et  al  and  Leavitt  (3  Conn.  Rep. 

124)  49.  52. 
Pendergrast  and  Roach   (3     Harr.   & 

Johns.  33)  222. 
Pennock  and  Currier  (14  Serg.  &  Rawle 

51)  141. 
Pennsylvania   (Bank   of)  v.  Hadfeg  (3 

Yeates  560)  202. 
Fennel  and  Cole  (2  Rand.  Rep.   174) 

177. 
Perrine   v.   Hankinson   (6   Halst.  Rep. 

181)  14. 
Person  v.  Carter  et  al  (3  Murpb.  Rep. 

321)  58. 
Peters  v.  Davis  (7  Mass  Rep.  257>131. 


INDEX    TO    AMERICAN    CASES. 


XXIX 


Petty's  Ex.  and  Yates  (I  Har.  &l  Johns. 

Rep.  58)  1U4. 
Phelps  V.  Johnson  (8  Johns,  Rep.  43) 

187. 
Phillips  V.  Prevost  (4  Johns.  Cha.  Rep. 

205)  99. 
Phiniiey  and  Wilbey  (15    Mass.   Rep. 

112)74. 
Pickering  v.  Holt  (6  Greenl.  Rep.  160) 

59. 
Pierce  v.  Jackson  (6  Mass.  243)  104. 
Pierpont  and  Dird  et  al  (1  Johns.  Rep. 

118)  127. 
Pierson  v.  Hooker  (3  Johns.  Rep.  70) 

51.  60. 
Pitkin  and  Beding  (2  Caints'  Rep.  147) 

34. 
Pitts  V.  VVauo-h  (4  Mass.  Rep.  424)  161. 
Pix  V.  Olis  (5  Pick.  Rep.  38)"  193. 
Pleasants  v.  Meng  (1  Dall.  380)  68. 
Plumb  and  Boyd  (7  Wend.  309)  56. 
Foindexter  v.  Woddy  (6  Munf.  418)  43. 

192.  239. 
Pollard  aiid  Fletcher  (2  Hen.  &  Munf. 

544)  60.  105. 
Pollock  and  Sheiton  (1  Hen.  &  Manf. 

422)  59. 

Portland  Bank  and  Gray  (3  Mass.  Rep. 

364)  74.  199. 
Porter  and  Bill  (9  Conn.  Rep.  23)  199. 
Porter  v.  Cumings  (7  Wend.  172)  38. 
Porter  and  Jackson  (2  Mart.  Rep.  200) 

58. 
Porter  v.  Crcsson   (10  Serg.  &  Rawle, 

257)  126. 
Post  V.  Kimberly  (9  Johns.  Rep.  439)  9. 

151. 
Pourie  et  al  v.  Fletcher  et  al  (2  Bay's 

Rep.  146)  137. 
Pourie  et  al  and  Foltz  (2  Desaus.  Cha. 

Rep.  40)  49. 
Prevost    and    Phillips    (4   Johns.   Cha. 

Rep.  205)  99. 
Price   &.  Co.  v.  Towsey   (3   Lilt.    Rep. 

423)  196.  248. 

Prince  and  Course  (1  Rep.  Const.  Ct. 

413)  74. 
Pulham  and  Wright  el  al  (2  Chitt.  Rep. 

1-21)  249. 
Purviance  v.  Dryden  (3  Serg.  &. Rawle, 

492)  179.  199. 
Purviance  v.  McClintee  (6  Serg.  &  R. 

259)  14. 
Purviance  v.  Sutherland   (Addis.   Rep. 

291)  139. 
Purvis  and  Hamill  (2  Penns.  Rep.  177) 

56. 
Pyke  and  Thomas  (4  Bibb's  Rep.  418) 

70. 

Quinu  &  Janney  and  Rooth  (7  Price 
193)  52. 


Ratnchander  v.  Hammond  (2  Johns.  Rep. 

200) 192. 
Rnpclje  and  Napier  (9  Wend.  120)  60. 
Rathbone  and  UcPhcrsoni^  Wend.216) 

193. 
Ratienbury  and  Atwood  et  al  (Moo.  Rep. 

209)  132. 
Reed  and  Wilson  et  al  (3  Johns.  Rep. 

175)91. 
Reed  and  Babb  (5  Rawle  151)  2.   227. 
Respass  and  Chiun  (1  Monroe's  Rep.  29) 

90. 
Rice  V.Austin  (17  Mass.  Rep.  197)  18, 

19. 
Richardson  and  Goodwin  (11  Mass.  Rep. 

459)  33. 
Richards  and  Terrill  (1  N.  &  McCord, 

20)  70. 
Richardson's  Ex.  v.  Wyatt's  Ex.  (2  De- 
saus Cha.  Rep.  471)  34. 
Richardson    Ex.  v.  Wyatt   (2   Desaus. 

Rep.  271)  232. 
Richards  and  Wirter  (10  Conn.  Rep.  37) 

205. 
Ridgeley  v.  Carey  (4  Har.  «fe  McHen. 

167)  236. 
Ripley  v.  Kingsbury  (1  Swift's  Dig.  342 

1  Day's  Rep.  150)  39. 
Ritchie  et  al  v.  Moore  (5  Munf.  388)  139. 
Robertson  v.  Mills  (2  Harr.  &,  Gill.  98) 

43.  200. 
Roach  V.  Pendergrast  (3  Harr.  &  Johns. 

33)  222. 
Robertson  v.  Smith  (18  Johns.  Rep.  459) 

162. 
Robins  V.  Willard  (6  Pick.  Rep.  464)  144. 
Robinson  v.  Beail  (3  Yeates,  227)  189. 
Robinson    and   Corps  (2  Wash.  C.  C. 

Rep.  388)  63.  194. 
Robinson  and   Franklin  (1  Johns.  Cha. 

Rep.  157)  355. 
Robinson  v.  Cowder  (4  McCord's  Rep. 

519)  51. 
Robinson  v.  Robinson  (1  Fairf.  Rep.  240) 

17. 
Robinson  and  Jackson  (3  Mason's  Rep. 

138)  32.  153. 
Rochester,  Bank  of  v.  Bowen  (7  Wend. 

309)  56. 
Rodman  t/n<Z Baxter  (3  Pick.Rep.  335)  18. 
Rogers  and  Smith  (17  Johns.  Rep.  340) 

Ul.  241. 
Rogers  V.Rogers  (1  Hall's  Rep. 391)  73 
Roosvelt  and   Dubois    (4   Johns.   Rep. 

202  n.)  43. 
Roosvelt  and  Livingston  (4  Johns.  255) 

37.  55. 
Rostain  and  Allen  (11  Serg.  &  Rawle, 

362) 193. 
Rose  v.  Murchie  (2  Gallis.  Rep.  409)  138. 

192. 
Rose  v.  Oliver  et  al  (2  Johns.  Rep.  365) 

86, 187. 


XXX 


INDEX    TO    AMERICAN    CASES. 


Rop  V.  Drinker  (2  Hall's  Rep.  415)  14. 
Roth  and  Darst  (4  Wash.  C.  C.  Rep.  471) 

59. 
Rootes  V.  WeJford  &,  Co.  (4  Munf.  215) 

64.  196. 
Roolh  V.  Quinn  &  Janney  (7  Price  193) 

52. 
Rowley  v.  Stoddart  (7  Johns.  Rep.  210) 

186. 
Runlett  an<Z  Davenport  (3  New.   Hamp. 

Rep.  3b6)  43. 
Russel  and  Ardley  (1  P.  A.  Bro.  Rep. 

145)  140. 
Russel  V.  Green  (lO  Conn.  Rep.  270)  70. 

Sabin  and  Foote  (19  Johns.  Rep.  154) 

56. 
Sale  V.  Dickman's  Ex.  (3  Leigh's  Rep. 

548)  190.  359. 
SalinoQ  &,  Brown  v.  Davis  (4  Binn.  375) 

60. 
Salt  and  Stead  (10  Moo.  389.  3  Bing. 

101)  60. 
Sanders  et  al  and  Studdy  (2   Dowl.  & 

Ry  1.347)  194. 
Sand  ford  v.  Mickles  et  al  (4  Johns.  Rep. 

224)  49.  251. 
Say  re  et  al  and  Mercer  (Anth.  N.  P. 

Rep.  119)64.  196. 
Schenck  et  al  and  Seely  (1  Penn.  75) 

125. 
Schenelzell.  and    Halstead    (17  Johns. 

Rep.  80)  74. 
Schaub  and   Hart  (1  Penns.  Rep.  285) 

59. 
Schlatter  and  Witmer,  (2  Rawle,  359) 

2. 
Scholefield  v.  Eichelberger  (7  Pet  S.  C. 

Rep.  586)  218. 
Scolfield  et  al  and  Kane  (3  Caines'  Rep. 

368)  39. 
Scott  V.  Dunlap  &  Co.  (2  Munf.  349) 

126. 
Scott  V.  Trent  (1  Wash.  Rep.  77)  137. 

252. 
Scott  et  al  and  United  States  Ins.  Com- 
pany (1  Johns.  Rep.  106)  153. 
Scott  et  al  V.  Israel  (2  Binn.  145)  178. 
Scott  and  Meader  (4  Verm.  Rep.  26) 

139.  190. 
Scottin  V.  Stanley  (I  Dall.  Rep.  129)  32. 
Seariffht  v.  Craighead  (1  Pen.  135)  64. 
Secbor  and  Lawrence  (2  Caines'  Rep. 

203)  233. 
Seely  v.  Schenk  et  al  (I  Penn.  Rep.  75) 

125. 
Selden  and  Doremus  (19  Johns.  Rep. 

213)  87. 
Sella  V.  HubbcU's  Adm.  (2  Johns.  Cha. 

Rep.  397)  106. 
Seton  and  Gram  (1  Hall's  Rep.  262)  58. 
Seymour  and  Boardman  (cited  2  Conn. 

Rep.  425)  70. 


Shaffer  v.  Snyder  (7  Serg.  &  Rawle  504) 

250. 
Sheeny  v.   Mandeviile  (6  Cranch  253) 

162. 
Sheldon  v.  Skinner  (9  Wend.  525)  71. 
Shclton  V.  Cocke  et  al  (3   MunH   191) 

59.  63.  194. 
Shelton  v.  Pollock  (1  Har.  &  Munf.  422) 

59. 
Shepherd  and  Cady  (11  Pick.  Rep.  400) 

58. 
Sherburne  et  al  and  Waldon  et  al  (Johns. 

Rep.  409)  14.  52.  64. 194. 
Sherwood  v.  Marwick  (5  GreenL  'Rep. 

295)  175. 
Sliields  V.  Oney  (5  Munf.  551)  178. 
Shubrick's  Ex.  v.  Fisher  et  a/ (2Desau8. 

Cha.  Rep.  148)  17. 
Simond  and  Ludlow  (2  Caine's  Ca.  1) 

59. 
Sims  and  Newbold   et  al  (2   Serg.    &. 

Rawle,  317)  70. 
Sigourney  v.  Munn  (7  Conn.  Rep.  11) 

33. 
Sigourney  v.  Munn  (7  Conn.  423)  234. 
Sims  V.  Willing  et  al  (8  Serg  &  Rawle, 

103) 151. 
Simpson  v.  Feltz  (1  McCord's  Cha.  Rep. 

219)  10.  14.  18.  105. 
Simpson  et  al  v.  Geddes  (2  Bay's  Rep. 

533;  64.196.212. 
Singleton  and  Gilley  (3  Litt.  Rep.  249) 

66. 
Skinner  v.  Dayton  (19  Johns.  Rep.  513) 

2  58  2'^6 
Skinner    and  Sheldon   (4  Wend.  525) 

91. 
Smith  v.  Edwards  (2  Har.  &.  Gill.  411) 

51. 
Smith  and  Farr  (9  Wend.  338)  90. 
Smith  (The  matter  of)  15  Johns.  Rep. 

102)  205. 
Smith  v.  Allen  (13  Johns.  Rep.  245)  74. 

200. 
Smith  and  Barney  (4  Harr.  &  Johns. 

485)  131. 
Smith  v.  Black  (9  Serg.  &  Rawle  142) 

162. 
Smith  and  Bently  (3  Caines,  Rep.  170) 

125. 
Smith  and  Davis  (4  Greenl.  Rep.  339) 

102. 
Smith  and  Hopkins  (11  Johns.  161)  6. 
Smith  and  Lowthorp  (Hayn.  Rep.  255) 

91. 
Smith  V.  Ludlows  (6  Johns.  Rep.  267) 

194. 
Smith   and  Mifflin  (17  Serg.  &  Rawle 

167)151.224. 
Smith   and  Robertson  (18  Johns.  Rep. 

452)  162. 
Smith  et  al  v.  Rogers  (17  Johns.  Rep. 
340)167.241. 


INDEX  TO  AMERICAN  CASES. 


XXXI 


Smith  and  Sylvester  (9  Mass.  Rep.  119) 

159. 
Smith  and  Vasse  (6  Craneh  131)  178. 
Smith  V.  Walker  (6  Johns  267)  63. 
Siriith  and  Spaulding  (1  Fairf.  Rep.  333) 

199. 
Smith  V.  Stone  (4  Gill  &  John.  310) 

60. 
Smith  V.  Barker  (1  Fairf.  458)  236. 
Smvth  V.   Hawthorn    (3   Rawle,    355) 

131. 
Sneed  v.  Coyle  (4  Litt.  Rep.  162)  48. 
Snced  v.  Weister  (2  Marsh.  Rep.  285) 

155. 
Snover  and  Blair  (5  Halst.  Rep.  153) 

120, 
Snow  and  Thompson   (i  Greenl.  264) 

19. 
Snyder  and  Shaffer  (7  Serg.  &  Rawle, 

504)  250. 
Southard  and  Steel  (3  Monroe's  Rep. 

433)  60. 
South  Carolina  f  Bank  of)  v.  Humphreys 

(1  McCord's  Rep.  379)  250. 
Spaulding  v.  Smith  (J  Fairf.  Rep.  363) 

199. 
Sperry's   Estate  (1   Ashm.    Rep.    347) 

360. 
Spencer  and  Ballow  (4  Cow.  Rep.  161) 

6. 
Speers  and  Kingsnian    (7  Pick.    Rep. 

2.35)  220. 
Spickerman  et  at  and  Niven  (12  Johns. 

Rep.  401)  71. 
Spraffue   and    Bristol   (7   Wend.    423) 

250. 
St.   John  V.  Standring    (2   Johns.  468) 

91. 
Stafford  v.  Gold.  (9  Pick.  533)  132. 
Standring  and  St.  John  (2  Johns.  Rep. 

468)  91. 
Starks  and  Miller  (13  Johns.  517)  199. 
Stansbury  v.  Marks  (4  Dall.  130)  178. 
Stanley  and  Scottin  (1   Dall.  Rep.  129) 

32. 
Stackpoolc  and  Baker  (9  Cow.  Rep.  420) 

196. 
Stead  V.  Salt  (10  Moo.  389.  3  Bing.  101) 

60. 
Stearns  v.  Burnliam  (4  Greenl.  Rep.  84) 

43. 
Steele  and  Southard  (3  Monroe's  Rep. 

433)  60. 
Slerhng  and  Whitney  et  al  (14  Johns. 

Rep.  215)  193. 
Sterry    et  al  and  Plarrison   (5   Craneh 

2S:))  51.  299. 
Stewart  v.  Coulter  (12  Scrg.  &  Rawle, 

252) 189. 
Stewart  v.  Eden  (2  Caine's  Rep.  12 1 ) 

187. 
Stiles  V.  Donaldsortf  (2  Dall.  Rep.  264) 

102. 


S(oddart  and   Rowley  (7    Johns.    Rep. 

210) 186. 
Stone  and  Smith  (4  Gill,  &  Johns.  310) 

60.       ■ 
Storcr  V.  Hinckley   it  al  (Kirby's  Rep. 

170)  38.  359. 
Story  V.  Barrel  &  Gilbert  (2  Conn.  Rep. 

665)  65.  196. 
Stoughton  V.  Lynch  (1  Johns.  Cha.  Rep. 

467)105. 
Studdv  V.    Saunders  et  al  (2  Dowl.  & 

Ryl"  347)  194. 
Styles  and  Lyle  (2  Wash.  C.  C.  Rep. 

224) 51. 
Summers   and    Knox    (4  Ycates    477) 

205. 
Sutherland    and  Purviance  (Add.    Rep 

.331)  139. 
Sutton  et  al  v.  Irwine  el  al  (12  Serg.  &. 

Rawle  13)  57. 
Sylvester  v.  Smith    (9  Mass.  Rep.  119  ) 

159. 

Taylor,  James,  Case  of  (1  P.  A.  Bro.  Rep, 

App.  Ixxiii.)  58. 
Taylor  v.  Coryell  &,  Co.  (12  Serg.  & 

Rawle,  243)  60. 
Taylor  and  Brydcn  (2  Harr,  &  John  396) 

193. 
Taylor  et  al  and  Eaton  (10  Mass.  Rep. 

54)  251. 
Taylor  v.  Henderson  (17Ser^,  &,  Rawle, 

453)  193.  199.203. 
Taylor  v.  Lyon  (2  Moo.  &  Payne,  586) 

132. 
Taylor  v.  Terme  (3  Harr.  &  Johns.  505) 

14. 
Teller  v.  Muir  (2  Penn,  Rep.  740)  194, 
Ten  Eyck  and  Lansing  (2  Johns,  Rep» 

300)  250. 
Terme  and  Taylor  (3  Harr.  &  Jbhns.^ 

505)  14.- 
Terrill  v.  Richards  (1  Nott.  &,  McCord's 

20)  70. 
Terry  et  al  and  Van  Vechten  et  al  (2 

Johns.  Cha.  Rep.  197)  143. 
Thomas  v.  Pyke  (4  Bibb's  Rep.  418)  70, 
Thommon  v.  Kalback  (12  Serg.  &.  Rawle, 

238)  248. 
Thompson   and   Bownes'    Ex.    (Coxe's 

Rep.  2)  189. 
Thompson  v.  Snow,  4  Greenl.  Rep.  264) 

19. 
Thompson  v.  Cook  (2  South,  Rep.  580) 

91. 
Thompson  et  al  and  Hartncss  et  al  (5 

Johns.  Rep.  160)  177. 
Thorndikc  v.  De  Wolf  (6  Pick.  Rep.  120) 

32. 
Tillcy  et  nl  and  Champlin  Ex.  (3  Day's 

307)  192. 
Tiljier  v.  Whitehead  (1  Dall.  261)  39. 


xxxu 


INDEX    TO    AMERICAN    CASES. 


Tinker  and  Nash  (8  Conn.   Rep.  587, 

cited)  16. 
Toll  and  Wailing  (9  Johns.  Rep.  141) 

178. 
Tom  V.  Goodrich  et  al  (2  Johns.  Rep. 

214)  lyu. 

Tornlinson   and   Hart    (2   Verm.   Rep. 

101. 
Tornlinson  v.  Burke  (5  Halst.  Rep.  295) 

125. 
Tornlinson  and  Meade  (1    Day's   Rep. 

48)  59. 
Totty's  Ex.  V.  Donald  &  Co.  (4  Munf. 

43U)  126. 
Towsey  and  Price  &  Co.  (3  Litt.  Rep. 

423)  196.  248. 
Tracy  and  Coit  (8  Conn.  Rep.  268)  64. 
Trent  and  Scott  (1  Wash.  Rep.  77)  166'. 

137.  252. 
Trimble  v.  Coons  (2  Marsh.  Rep.  376) 

58. 
Tucker's  Ex.  and  Fisher's  Ex.  (1  Mc- 

Cord's  Cha.  Rep.  170)  64.  251. 
Tucker's  v.  Oxley,  (5  Cranch  34)  313. 
Tulton  and  Davis'  Ex.  (1  Overt.    Rep. 

121)  246. 
Turnbuil  and   Kirkpatrick  (Add.   Rep. 

259)  45. 
Turner  v.  Burrows  (5  Wend.  541)  233. 
Tultle  V.  Cooper  (5  Pick.  414)  43. 
Tuttle  V.  Eskridge  (2  Munf.  330)  59. 

Union  Bank  v.  Hall  (1  Harper's  Rep. 

246)  230. 
Union  Bank  v.  Knapp  (3  Pick.  Rep.  112) 

102. 
Union  Insurance  Co.  and  White  (1  Nott 

&  McCord's  Rep.  359)  236. 
United  States  v.  Hack  (8  Pet.  S.  C.  Rep. 

271)205.45. 
United  States  v.  Astley  (3  Wash.  C.  C. 

508)58.  190. 
United  States  v.  Kennan  (1  Peter's  Rep. 

168) 125. 
United  States  In?.  Co.  and  Holmes  (2 

Johns.  Ca.  329)  153. 
United  States   Ins.  Co.  v.  Scott  et  al  (1 

Johns.  Rep.  106)  153. 
Upham  and  Flagg  (10  Wend.  147)  43. 

Vallett  V.  Parker  (6  Wend.  615)  38. 
Van    Breamere   et  al  v.  Cooper  et  al  (2 

Johns.  Rep.  279)  192. 
Van  Deusen  and  Byres  (5  Wend.  268) 

230. 
Van  Ness  v.  Forrest  (8  Cranch,  30)  77. 
Van  Reimsdyk  v.  Kane  et  al  (1  Gallis 

Rep.  630)  J  54.  194. 
Van  Rensselaer  and  Wendell  (1  Johns. 

Cha.  Rep.  350)  142. 
Van  Schaick  and  Martin  (4  Page's  Rep. 

479)  114. 


Van  Vechten   et   al   v.  Terry   et  al  (9 

Johns  Cha.  Rep.  197)  143. 
Vassee  v.  Smith  (6  Cranch,  231)  178. 
Vuughan  and  Golding,  (2  Chit.  Rep.  436) 

131. 
Vere  and  Ashby   (10  B.  &  Crew.  288) 

192 
Vice  and   Lady   Andson    (7  Barn.  & 

Cresw.  409)  17. 
Vice  V.  Fleming  (1  Young  &  Jerv.  227) 

52. 
Vining  and  Iby  (2  McCord's  Rep.  379) 

250. 
Vredenburg  and  Waddington  .(2  Johns. 

Ca.  227)  245. 

Waddington   and   Griswold  (16  Johns. 

Rep.489)5.51.  84. 120. 
Waddington  v.  Vredenburgh  (2  Johns. 

Ca  227)  245. 
Waddy  and  Poindexter  (6  Munf.  418) 

43.  192.  239. 
Waggoners  v.  Craig's  Adm.  (2  Hen.  & 

Munf.  603)  199. 
Wailing  v.  Toll  (9  Johns  Rep.  141)  178. 
Wakely  v.  Hart  et  al  (6  Binn.  319)  217. 
Walcot  V.  Canfiuld  et  al  (3  Conn.  Rep. 

194)  55.  160. 
Walden  et  al  v.  Serburne  et  al  (15  Johns, 

Rep.  409)  14.  52.  64.  194. 
Walker  et  al  v.  Duberry   (1  Marsh.  Rep. 

189)  196. 
,  Walker  v.  Long  (2  P.  A.  Bro.  Rep.  125) 

74. 
Walker  et  al  v.  Dickerson  et  al  (2  Hayw. 

Rep.  23)  58. 
Walker  and  Smith  (6  Johns.  Rep.  267) 

63. 
Wallace  v.  Fitzsimons  (1  Dall  248)  131. 
Wallace  et  al  v.  Paterson  et  al  (2  Harr.  & 

McHcn.  463)  205. 
Wallace,  Ex.  and   Wilson   (1  Scrg.  &, 

Rawle,  53)  125. 
Walmesly  v.  Lindenberger  (2  Rand.  Rep. 

478)  177. 
Wain  and  Forest  (4  Yeates  337)  240. 
Wain,  surv.  partn.  v.  Hewer  (5  Serg.  & 

Rawle,  470)  1.39. 190. 
Walsh  and  Austin  (2 Mas.  Rep.  401)  J29. 
Walton  et  al  and  Martin  (1  McCord's 

Rep.  16)  49.  250. 
Ward  V.Howell  (5  Harr.  &  Johns.  60) 

63. 
Ward  and  Wodrop  (3  Desaus.  Cha.  Rep. 

203)  234.  360. 
Warner  and  Cope  (13  Serg.  &  Rawle, 

411)  359. 
Warner  v.  Griswold  (8  Wend.  Rep.  665) 

Warfield's  Adm.  and  Howards  (4  Har.  & 

McHen.  21)137. 
Warner  v.  Cunningham  (3  Dow'b  Rep. 

76)  220. 


INDEX    TO    AMERICAN    CASES." 


XXXUl 


Walbridge  and  Williams  (3  Wend.  415) 

45. 
Watson  and  Cooper  (3  Dougl.  Rep.  413) 

7. 
Warree  v.  Buntee  (1  Ryl.  &  Dowl.  106) 

200. 
Watlington  and  Cooper    (2  Chit.  Rep. 

451)  107. 
Watson  and  Barnelt  (1  Wash.  Rep.  372) 

126. 
Watson  V.  Welles  (5  Conn.  Rep.  468)  66. 
Waugh  and  Pitt  (4  Mass.  Rep.  424)  161. 
Weister  and  Sneed  (2  Marsh  Rep.  285) 

155. 
Welford  &  Co.  and  Rootes  (4  Munf.  215) 

64. 196. 
Welles  and  Watson  (5  Conn.  Rep.  468) 

66. 
Wctmore  et  al  and  Baker  et  at  (9  Johns. 

Rep.  307)  149. 
Wendell  v.   Van  Rensselear  (1  Johns. 

Cha.  Rep.  350)  142. 
Worts  and  Hess  et  al  (4  Serg.  &,  Rawle, 

356)  2.  17. 
Westcrlo  v.  Evertson    (1   Wend.  Rep. 

532)  5. 
Wheelright  v.  Depeyster  (1  Johns.  Rep. 

471)  135. 
White  V.  Hall  (3  Pick.  291)  64. 
Whitaker  v.  Brown  (1 1  Wend.  75)  43. 
White  V.  Union  Insurance  Co.  (1  Nott 

&  McCord's  Rep.  559)  236. 
Whitehead  and  Tillier  (1  Dall.  269)  39. 
Whiting  V.  Farrand  (1  Conn.  Rep.  60) 

240. 
Whitman   v.    Leonard    (3    Pick.  Rep. 

177)  230.  245.  250. 
Whitney  v.  Ferris  et  al  (10  Johns.  Rep. 

66)  194. 
Whitney   and   Minnett   (10   Vin.   Abr. 

244)  75. 

Whitney  and   Muzzv  (10   Johns.   Rep. 

226)  19. 
Whitney  and  Halsey  (4  Mason's  Rep. 

232)  59. 
Wiiitncy  et  al   v.  Sterling  (14  Johns. 

Rep.  215)  193. 
Whitridgo  and  Lovel  et  al  {I  McCord's 

Rep.  7)  137,183. 
Whitticr  and  Burnhara  (5  N.   Hamps. 

Rep.  334)  39. 
Widdifield  et  al  v.  Widdifield  (2  Binn. 

245)  191. 

Wilby  V.  Phinney  Adra.  (15  Mass.  Rep. 

123)  88. 
Wilby  V.  Phinney  (15  Mass.  Rep.  112) 

74. 
Wilcox  and  Bernard  (2  Johns.  Ca.  374) 

128. 
Wilkes  et  al  v.  Ferris  (5  Johns.  Rep. 

335)  187. 
Wilkins   and  Comm.  Bank  (9  Greenl. 

34)  205. 

E 


Wilkins  and  Jordan  (3  Wash.  C.  C.  110) 

133. 
Willard  and  Robbins  (6  Pick.  Rep.  464) 

194. 
Williams   and   Clemcntson  (8  Cranch, 

72)  196- 
Williams  v.  Hcnshaw  (1 1  Pick.  79)  74. 
Williams  v.  Hodgson  (2  Harr.  «fc  Johns. 

474)  58. 
Williams  v.  McFall  et  al   (2  Serg.  & 

Rawle,  280)  162. 
Willams  V.  Walbridge  (3  Wend.  415)  45. 
Williams    v.'   Donaghe's   Ex.    (1  Rand. 

Rep.  300)  162. 
Williams   et   al   v.  Hamilton  (1  South 

Rep.  220)  207. 
Williamson  v.  Johnson  (2  Dowl.  &  Ryl. 

Rep.  281)  140. 
Williamson  and  Norden  (1  Taunt.  377) 

199. 
Willings   V.  Consequa  (1  Peter's  Rep. 

301)  162. 
Willing  and  Griffith  (3  Binn.  317)  69. 
Willing  et  aland  Sims  (8  Serg.  &  Rawle, 

103)  151. 
Wilmington  Bank  v.  Almond  (1  Whart. 

Rep.  169)  243. 
Wilson   V.   Wallace's   Ex.  (8   Serg.  & 

Rawle  53)  125. 
Wilson  et  al  v.  Connie  (2  Johns  Rep. 

280)  224. 
Wilson  V.  Gibbs  (2  Johns.  Rep.  280) 

205. 
Wilson  et  al  v.  Reed  (3  Johns.  Rep.  175) 

91. 
Wiser  v.  Blachley  (1  Johns.  Cha.  Rep. 

437)  142. 
Wister  v.  Richards  (10  Conn.  Rep.  37) 

205. 
Withers  v.  Withers  (8  Pet.  S.  C.  Rep. 

355)  105. 
Witmer  v.  Schlatter  (2  Rawle  359)  2. 
Winship  v.  The  Bank  U.  States  (5  Pet. 

S.  C.  Rep.  529)  38. 
Winchester  v.  Jackson  (3  Hayw.  Rep. 

310)  196. 
Winkle  and  Burke  (2  Serg.  &  Rawle, 

189)  3. 
Winship  and  Man.  &,  Mech.  Bank  (5 

Pick.  Rep.  11)  39. 
Winslow  V.  ChiiFelle  ■  (Harp.  Eq.  Rep. 

25)  36. 
Winsor  and  Cutler  (6  Pick.  Rep.  335)  18. 
Wodrop  V.  Ward  (3  Dcsaus.  Cha.  Rep. 

203)  236, 360. 
Wood  anri  McDowall  (2  Nott  &  McCords 

Rep.  242)  2. 
Woodward  v.  Newhall's  (1  Pick.  Rep. 

500)  177. 
Woody  V.  Flournoy  (6  Munf.  506)  55. 
Wood  and  Egberts  (3  Paige's  Rep.  517) 

51,  236. 


XXXIV 


INDEX    TO    AMERICAN    CASES. 


Woodford  v.  Dorcoin  (3  Verm.  Rep.  82) 

50. 
VVooda  and  Egbert  (3  Paige's  Rep.  517) 

131. 
Wolcott  and  Lacy  (2  Dovvl.  &  Ryl.  Rep. 

458)  306. 
Wrashall  and  Fawcett  (2  Carr.  &  Payne 

305)  199. 
Wright  et  al  v.  Pulham  (2  Chit.  Rep. 

121)  249. 
Wyatt  and  Blew  (5  Car.  &  Payne,  397) 

241. 


Wyatt's  Ex.  and  Richardson's  Ex.  (2 
Desaus  Cha.  Rep.  471)  34.  232. 

Yates  V.  Petty's  Ex.  (1  Harr.  &  Johns. 

Rep.  58)  104. 
Young  et  al  v.  Brick  et  al  (2  Penn.  Rep. 

663)  74. 

Zelie  et  al  v.  Campbell's  Ex.  (2  Johns 
Ca.  383)  133. 


PRACTICAL  TREATISE 


ON  THE 


LAW   OF  PARTNERSHIP. 


CHAPTER  I. 

OF  THE  CONTRACT  OF  PARTNERSHIP. 

Partnership  has  been  thus  described  by  an  eminent 
writer  on  the  civil  law :  contractus  societatis  est,  quo  duo, 
pluresve,  inter  se  pecimiam,  res,  ant  operas  confenint,  eo 
fine  ut,  quod  inde  redit  lucri,  inter  singulos  pro  rata,  divi- 
datur.{a)  This  definition,  has  been  observed,  is  good 
only  as  between  the  parties,  but  not  with  respect  to  the 
world  at  large.(6)  To  render  a  partnership  complete,  a 
communion  of  loss  as  well  as  profit  is  essential.(c)  The 
shares  of  the  parties  must  be  joint,  though  it  is  not  ne- 
cessary that  they  should  be  equal :  and  the  parties  joint- 
ly interested  in  the  purchase  must  also  be  jointly  con- 
cerned m  the  future  sale.(c?)  Partnership,  therefore,  in 
its  extended  and  complete  sense,  is  a  voluntary  contract, 
between  two  or  more  persons,  for  joining  together  their 
money,  goods,  labour,  and  skill,  or  either  or  all  of  them, 
upon  an  agreement,  that  the  gain  and  loss  shall  be  di- 
vided proportionably  between  them,  and  having  for  its 
object  the  advancement  and  protection  of  fair  and  open 
trade.(c)(l) 

Every  person  sui  juris  is  competent  to  contract  the 

(a)  Puffendorf,  lib.  5.  cap.  8.     [b)  Waiigh  v.  Carver,  2.  H.  Bl.  246. 
(c)  Coope  V.  Eyre,  1  H.  Bl.  37.  \d)  Ibid.  (e)  Wats,  on  Partn.  1. 

(1)  Partnership  is  a  contract  by  which  two  or  more  persons  join  in 
common  money  or  goods,  and  labour  or  service,  for  carrying  on  some 

1 


2  OF  THE  CONTRACT 

relation  of  partner.  An  infant  may,  by  law,  be  a 
partner,  and  he  will  be  entitled  to  all  the  bene- 
[  *2  ]  fits  resulting  from  the  partnership,  *although  he 
will  not  be  liable  for  the  losses,  if  he  chooses  to 
avail  himself  of  his  minority.(a)(l)  But  a  feme  covert 
cannot  sustain  the  character  of  partner,  because  she 
is  legally  incapable  of  entering  into  the  contract  of 
partnership  ;(2)  and  although  married  women  are  not 

(a)  Goode  v.  Harrison,  5  B.  &  A.  150.  But  an  infant  partner,  who, 
on  attaining  the  age  of  majority,  does  not  disaffirm  the  partnership,  is 
responsible  on  contracts  subsequently  made  by  the  firm.  Id.  ibid,  and 
see  Glossop  v.  Colman,  1  Stark.  N.  P.  C.  25. 

lawful  commerce,  work,  or  other  business,  that  they  may  share  among 
them  all  the  gain  or  loss  thence  arising.  Forbes,  Inst,  of  Scot.  Law, 
Part  2.  B.  3,  sect.  3.  page  184.  {edit.  Edin.  1722,  12mo.)  See  also  the 
definition  of  partnership,  by  Domat,  Civ.  Law,  vol.  1,  p.  85.  (edit. 
Paris,  1745,  fol.)  and  in  the  Ordenanzas  de  Bilbao,  p.  71.  cap.  10 
num.  1.  {edit.  Madrid,  1796.  fol.)  9  Johns.  Rep.  488.  The  most  satis- 
factory definition  is  to  be  found,  3  KenVs  Commentaries,  p.  23,  2d. 
Edition. 

When  it  is  recollected  how  much  weight  is  given  to  the  credit  raised 
by  the  use  of  a  partnership  firm,  it  maybe  questioned  whether  a  single 
individual  can,  by  the  use  of  a  firm,  make  a  partnership,  which  shall 
have  the  effect  of  entitling  the  creditors  dealing  with  that  firm  to  a  pre- 
ference over  the  stock  of  it.  The  essential  principles  on  which  alone 
the  separate  character  of  a  partnership,  and  the  distinct  appropriation  of 
its  funds,  rest,  forbid  this  conclusion.  So  it  was,  accordingly,  deter- 
mined by  the  Court  of  Sessions,  who  refused  to  make  any  distinction 
in  favour  of  the  creditors  of  a  firm  set  up  by  an  individual ;  but  massed 
together  the  whole  of  the  debts  of  that  firm,  and  of  the  individual. 
Nairn  v.  Sir  W.  Forbes  ^  Co.  25th  Nov.  1795;  BelVs  Comm.  vol!  2. 
p.  626. 

(1)  An  infant  who  has  been  in  partnership  with  a  person  of  full 
age,  but  who  dissolves  the  contract  the  day  after  he  becomes  of  age, 
cannot  recover  from  a  creditor  of  the  partnership,  money  paid  during 
its  continuance.  Holmes  v.  Blogg,  8  Taunt.  35,  508.  In  Scotland 
it  would  appear  to  be  beyond  the  power  of  a  father,  as  administrator 
for  his  son,  or  of  tutors,  on  the  part  of  a  pupil,  to  engage  him  as  a 
partner  in  a  Company :  and  an  action  for  inferring  responsibility 
against  the  pupil's  estate  would  be  ineffectual.  But  in  such  a  case,  the 
father  or  tutor  would  probably  be  held  liable  as,  himself,  the  substitute 
for  the  incapable  minor.  BelVs  Comm.  vol.  2.  p.  627,  and  the  cases 
there  cited.  If,  however,  a  minor  acts  as  a  trader,  and  holds  himself 
out  to  the  world  as  such,  his  dealings  are  on  the  same  footing  with 
those  of  a  person  of  full  age.     BelVs  Comm.  vol.  1.  p.  249.     See  also 

•  Pothier,  Conlr.  de  Societe,  {edit.  Paris,  1807.)  p.  84. 

(2)  Cosio  et  al.  v.  De  Bcrnales,  2  Carr.  &;  Payne,  266. 


OF    PARTNERSHIP.  4 

unfrequently  entitled  to  shares  in  banking-houses  and 
other  mercantile  concerns,  under  positive  covenants,  yet 
vs^hen  this  happens,  their  husbands  are  entitled  to  such 
shares,  and  become  partners  in  their  stead.(l) 

The  contract  of  partnership  may  be  divided  into  the  two 
classes  of  public  and  private.  It  may  be  denominated 
public,  where  the  association  consists  of  an  indefinite  or 
a  large  definite  number  of  joint  undertakers ;  and  pri- 
vate, where  a  few  individuals  only  connect  themselves 
together.  The  former  is  usually  called  a  company  or 
society,  and  is  instituted  to  carry  on  some  important 
undertaking,  for  which  the  capital  and  exertions  of  a  few 
individuals  would  be  insufficient.  Of  these,  some  are  in- 
corporated by  letters  patent,  or  act  of  parliament,  such 
as  the  East  India  Company  and  the  Bank  of  England  ; 
others  are  not,  such  as  most  of  the  Fire  and  Life  Insur- 
ance Companies. 

Those  companies  or  societies,  which  are  not  confirm- 
ed by  public  authority,  are,  in  fact,  nothing  more  than 
ordinary  partnerships,  and  the  laws  respecting  them  are 
the  same  ;(b)  but  the  articles  of  agreement  between  the 
parties  are  usually  very  different.  The  capital  is  generally 
divided  into  a  certain  number  of  shares,  \vhereof  each 
partner  may  hold  one  or  more  ;  but  he  is  restricted  to 
a  certain  number.  Any  partner  can  also  tranfer  his 
share,  under  certain  limitations ;  but  no  partner  acts 
personally  in  the  aflfairs  of  the  company  ;  the  execution 
of  their  business  being  entrusted  to  officers,  for  whom 
the  whole  company  are  responsible,  though  the  superin- 
tendency  of  such  officers  is  frequently  committed  to  di- 
rectors chosen  from  the  body  at  large. 

(6)  Rex  V.  Dodd,  9  East,  516.  Beaumont  v.  Meredith,  3  Ves.  and 
Bea.  180. 

(1)  See  Code  Civil,  par  Sirey,  art.  220.  (edit.  Paris,  1821,  4to.) 
Whether  a  feme  sole  trader  in  Pennsylvania  can  legally  enter  into  a 
contract  of  partnership,  with  a  view  to  benefit  her  trade,  or  to  maintain 
her  family,  has  not  been  decided  ;  but  it  would  be  difficult  to  maintain 
since  the  decision  in  Burke  v.  Winkle,  2  Serg.  &  Rawle,  189,  that  she 
could  not  enter  into  such  a  contract.  See  also  as  to  the  power  oi  feme 
sole  traders  in  South  Carolina,  McDowall  v.  Wood,  2  Nott  &  McCord's 
Rep.  242.    2  Bay,  162,  333. 


2  OF    THE    CONTRACT 

There  are  likewise  trading  companies  established  by 
public  authority.  The  king,  by  his  charter,  may  consti- 
tute fraternities  or  companies  for  the  management  of 
foreign  or  domestic  trade.(z)  Since  trade  cannot 
[  *3  ]  be  maintained  and  increased  without  *order  and 
government,(a)  therefere  the  king  may  erect 
gildam  mercatoriam  for  the  advantage  of  trade  ;(6)  and 
none  but  the  king  can  erect  a  society  for  trade,  or  public 
trading  company.(c)  But  the  king,  by  his  charter,  can- 
not make  a  total  restraint  of  trade,  for  such  a  patent 
would  be  void.(c?) 

A  royal  charter  is  necessary  to  enable  a  company  to 
hold  lands,  to  have  a  common  seal,  and  enjoy  the  other 
privileges  of  a  corporation;  but  a  charter  is  sometimes 
procured  merely  to  limit  the  risk  of  the  partners ;  for, 
in  every  private  unincorporated  company,  the  members 
are  liable  for  the  debts  without  limitation:  (e)  (1)  in 
incorporated  societies,  they  are  only  liable  to  the  extent 
of  their  shares  in  the  stock  of  the  society.  Sometimes 
trading  companies  are  authorised  by  act  of  parliament ; 
but  this  high  authority  is  only  necessary  to  confer  ex- 
clusive privileges,  which,  by  the  principles  of  the  common 
law,  cannot  be  granted  by  the  king's  charter,  (g) 

Not  any  one  of  the  public  trading  companies,  incor- 
porated by  royal  charter,  or  act  of  parliament,  are  to  be 
considered  as  partnerships,  within  any  of  the  legal  prin- 
ciples applicable  to  partnerships  formed  by  the  voluntary 

(z)  Com.  Dig.  Tit.  Trade,  B.  Darcy  v.  Allen,  cited  in  the  city  of 
London's  case,  8  Rep.  125. 

(a)  Com.  Dig.  Tit.  Trade,  D.     (b)  City  of  London's  case,  supra. 

(c)  East  India  Company  v.  Sandys,  Skinn.  224. 

{(l)  Darcy  v.  Allen,  supra.  See  also  3  Mod.  132.  East  India  Com- 
pany V.  Evans,  1  Vern.  307. 

(e)  Rex  V.  Dodd,  9  East,  516. 

(g)  Kyd  on  Corporations,  1st  vol.  p.  61. 

(I)  Hess  et  al.  v.  Werts,  4  Serg.  &l  Rawle,  356.  TVitmer  v.  Schlat- 
ter et  al.  2  Rawle,  359.  Bahh  v.  Reed  et  al.  5  Rawle,  151.  Skinner  v. 
Dayton,  19  Johns.  Rep.  513.  Benson  v.  Brown.  10  Wend.  Rep.  258. 
The  law  of  Scotland  imposes  the  same  obligation.  Douglass,  Heron 
8f  Co.  against  Hair,  24th  July,  1778;  6  Fac.  Coll.  p.  57.  BelVs  Comm. 
623,  vol.  2.  (4th  edit.  Edin.  1821.) 


OF  PARTNERSHIP. 


agreement  of  individuals.  For  in  such  public  companies, 
where  a  trade  is  to  be  carried  on  under  the  corporate 
name  in  joint  stock  (as  in  the  case  of  the  East  India 
Company,  ^-c),  the  members,  as  such,  are  not  objects  of 
the  bankrupt  laws ;  (a)  and  there  are  express  provisions, 
that  they  are  not  to  be  liable,  on  account  of  the  joint 
trade,  in  their  individual  capacities ;  nor  one  of  them  for 
the  debts  or  engagements  contracted  by  others ;  but  only 
for  their  respective  shares  or  interest  in  the  joint  stock, 
and  that  upon  trade  and  contracts  carried  on  or  made 
in  the  corporate  character.  Therefore,  if  one  or  more 
persons  enter  into  such  a  society,  and  become  sharers 
of  the  property  and  joint  stock,  yet  such  an  association 
does  not  constitute  a  partnership,  according  to  the  cus- 
tom of  merchants,  nor  within  the  principles  of  law  estab- 
lished respecting  joint  traders. 

To  contract  the  relation  of  private,  as  it  has  been  con- 
tradistinguished from  public  partnership,  no  charter 
or  license  is  ^necessary ;  the  bare  consent  of  the  [  *4  ] 
parties  being,  for  this  purpose,  sufficient.  Such  con- 
sent may  be  testified,  either  in  express  terms,  as  by  articles 
of  copartnership,  or  positive  agreement ;  or  the  assent 
may  be  tacit,  and  to  be  implied  solely  from  the  acts  and 
conduct  of  the  parties,  {b)  An  implied,  or  presumptive 
assent,  has  equal  operation  with  one  that  is  express  and 
determined.  Thus,  to  constitute  a  partnership  inter  se, 
the  existence  of  written  articles  is  not  essential,  the 
mere  act  of  trading  jointly  being  sufficient  for  that  pur- 
pose ;  and,  with  respect  to  the  world,  it  may  be  laid 
down  as  an  undeniable  proposition,  that  persons  having 
a  mutual  interest  in  the  profits  of  any  business,  or  parti- 
cular branch  of  business,  carried  on  by  them,  or  persons 
appearing  ostensibly  as  joint  traders,  are  to  be  recog- 

(a)  6  Geo.  IV.  c.  16.  s.2. 

(b)  Under  the  Romans,  the  social  contract  or  partnership  needed  no 
other  solemnity  but  the  consent  of  parties,  without  any  writing  at  all; 
and  Barbeyrac,  in  his  notes  on  Puffendorf,  observes,  that  a  partnership 
is  contracted  sometimes  tacitly;  where,  for  example,  a  thing  being 
bought  in  common  is  not  divided,  but  the  parties  interested,  without 
explaining  themselves  further,  enjoy  it  equally,  each  sharing  in  the 
profit  that  arises,  and  contributing  his  own  proportional  part  in  the  ne- 
cessary expenses  for  its  maintenance. 


4  OF  THE  CONTRACT 

nised  and  treated  as  partners,  whatever  may  be  the  na- 
ture of  the  agreement  under  which  they  act,  or  what- 
ever motive  or  inducement  may  prompt  them  to  such  an 
exhibition,  (b)  But  a  joint  possession  has  not,  per  se, 
the  effect  of  converting  the  possessors  into  partners.  A 
joint  possession,  or  the  holding  of  something  in  common 
among  many,  does  not  necessarily  imply  the  reciprocal 
choice  of  the  parties ;  on  the  contrary,  several  may  hold 
a  thing  in  common,  independently  of  their  own  original 
free  election.  Of  this  latter  class  are  the  joint  donees 
or  joint  legatees  of  one  and  the  same  thing,  or  those 
who,  through  other  causes,  chance  to  hold  something 
between  them,  which  is  not  divided,  and  is  to  be  pos- 
sessed in  common  without  any  mutual  agreement.  The 
free  and  personal  choice  of  the  parties  is  so  essentially 
necessary  to  the  constituting  of  a  partnership,  that  even 
the  executors  and  representatives  of  deceased  partners 
themselves  do  not,  in  their  representative  capacity,  suc- 
ceed to  the  state  and  condition  of  partners,  (c)  althoiigh 
a  community  of  interest  necessarily  exists  between  them 
and  the  surviving  partners,  until  the  affairs  of  the  part- 
nership are  wound  up.  (d)  And,  on  the  same 
[  *5  ]  principle,  one  partner  can  in  *no  instance,  without 
the  consent  of  his  copartners,  introduce  a  stranger 
into  the  concern  as  a  partner,  (1)  although  he  may 
charge  his  own  undivided  interest  to  any  extent  lie 
pleases  in  favour  of  that  stranger,  (e) 

The  law  of  England  permits  only  those  mercantile 
associations  Avhich  are  sanctioned  by  justice  and  sound 
policy.  It  follows,  therefore,  that  the  object  of  every 
partnership  must  be  the  adventuring  in  some  lawful  trade 
or  business.  By  the  civil  law  it  is  well  established,  that 
no  partnership  can  be  contracted,  except  it  have  relation 
to  fair  trade  or  commerce,  or  some  other  thing  that  is 

(b)  Mclver  v.  Humble,  16  East,  174. 

(c)  Pearce  v.  Chamberlain,  2  Ves.  sen.  34. 
((/)  ^ajjoar/e  Williams,  11  Ves.  3. 

(e)  Bray  v.  Fromont,  6  Madd.  5. 

(1)  Murray  v.  Bogert,  14  Johns  Rep.  318.  Kingman  v.  Speers, 
7  Mass,  Rep.  235.    Mason  v.  Connell,  1  Whart.  Rep.  381. 


OF  PARTNERSHIP.  5 

honest  and  lawful :  every  partnership,  formed  on  a  basis 
at  variance  with  such  principles,  being  considered  not 
only  improper  but  unjust.  Si  malejicii  societas  coita  sit, 
constat  nullam  esse  societatem  ;  generaliter  enim  traditur, 
rerum  inhonestarum  nullam  esse  societatem.  Societas  Jla- 
gifioscB  rei  nullas  vires  habet.  Delictorum  turpis  atgue 
fce,da  communio  est.  Nor,  according  to  the  laws  of  this 
country,  is  there  any  sound  distinction  to  be  made  be- 
tween an  association,  for  the  pupose  of  engaging  in 
transactions  which  are  m^ala  in  se,  and  those  which  are 
mala  prohibita  ;  the  latter,  as  well  as  the  former,  tending 
to  encourage  a  breach  of  the  law,  and  it  being  equally 
unfit  that  a  man  should  be  allowed  to  take  advantage  of 
what  the  law  says  he  ought  not  to  do,  whether  the  thing 
be  prohibited  because  it  is  against  good  morals,  or  whe- 
ther it  be  prohibited  because  it  is  against  the  interest  of 
the  state,  (b)  (1)  Thus  a  partnership  for  importing 
prohibited  goods,  (c)  or  making  time  bargains  in  the 
funds,  would  be  held  illegal  and  invalid,  not  less  than  a 
partnership  for  keeping  a  disorderly  house,  or  robbing 
on  the  highway.  (2)  But  if  the  object  contemplated  by 
persons  associating  themselves  together  as  partners,  do 
not  contravene  either  the  law  of  nature,  or  the  municipal 
law  of  the  land,  it  will  be  valid,  although  it  do  not  relate 
to  trade.  Partnerships  are  not  necessarily  confined  to 
trades  or  commercial  adventures.     They  may  lawfully 

(6)  Bensley  v.  Bignold,  5  B.  &  A.  331.  Aubert  v.  Maze,  2  Bos.  & 
Pul.371. 

(c)  Biggs  V.  Lawrence,  3  T.  R.  454.  Webb  v.  Brooke,  3  Taunt.  13. 

(1)  See  Griswold  v.  TVaddington,  16  Johns  Rep.  489,  et  seq.  Bar- 
tie  V.  Coleman,  4  Pet.  S.  C.  Rep.  184. 

(2)  See  a  curious  bill  by  a  highwayman  against  his  companion,  for 
a  share  of  the  phmder;  and  a  statement  of  the  partnership  mode  of 
dealing,  in  Sir  JV.  D.  Evan's  edition  of  Pothier  on  Obligations,  vol. 
2,  p.  3,  and  in  the  Ewop.  Mag.  1787,  vol.  2,  p.  360.  Lord  Kenyan, 
in  Ridley  v.  Moore,  Clifford'' s  Rep.  of  Southivark  Election,  also  men- 
tions this  case,  of  which,  however,  it  is  said,  no  record  remains  in  the 
office.  The  clerk,  however,  of  an  unincorporated  company,  associated 
for  the  purpose  of  carrying  on  banking,  contrary  to  law,  cannot  set  up 
the  unlawful  character  of  the  association,  so  as  to  defeat  a  bill  in  equity 
against  him  by  the  company  for  an  account  of  his  agency.  Berkshire 
y.  Evans,  4  Leigh's  Rep.  223. 


0  OF  THE  CONTRACT 

subsist  in  cases  unconnected  with  mercantile  speculations. 
For  instance,  a  partnership  may  exist  between  attorneys, 
(1)  or  farmers  (2)  as  well  as  between  merchants  and  bank- 
ers, (z)  Nor  does  it  follow,  from  *the  contraction 
[  *6  ]  of  the  relation  of  partners,  that  the  persons  con- 
tracting it  are  indiscriminately  united  as  general 
partners ;  for  a  partnership  may  be  limited  to  a  particu- 
lar branch  of  business,  without  extending  to  all  the  con- 
cerns in  which  any  member  of  the  firm  may  chance  to 
be  engaged,  (a)  Thus,  two  merchants  may  join  in  send- 
ing out  a  cargo  of  goods  to  a  foreign  country.  As  to  this 
adventure,  they  have  all  the  rights,  and  are  subject  to  all 
the  liabilities  of  partners ;  but  the  relation  of  co-partner- 
ship between  them  ceases  with  it,  and  at  no  time  extends 
to  any  of  their  other  concerns.  So,  several  may  be  inter- 
ested in  a  chattel,  and  agree  to  manage  it  at  their  nmtual 
expense,  and  for  their  mutual  profit ;  quoad  hoc  they  are 
partners.  In  hke  manner,  if  two  persons,  who  are  not 
partners  in  trade,  draw  a  bill  of  exchange  payable  to 
themselves  or  their  order,  they  are  partners  as  to  the 
transaction  of  the  bill,  but,  in  every  other  respect,  they 
continue  perfectly  distinct.  (6)  (3)  So,  if  a  number  of 
persons  associate  together  and  subscribe  sums  of  money 
for  the  purpose  of  obtaining  a  bill  in  parliament  to  make 
a  railway,  they  are  jpro  hac  vice  to  be  treated  as  part- 
ners, (c) 

(z)  Per  Gould  J.,  Coope  v.  Eyre,  1  H.  Bl.  37. 

(a)  Per  Lord  Mansfield,  Willett  v.  Chambers,  Cowp.  814.  See 
also  Robey  v.  Howard,  2  Stark.  N.  P.  C.  557. 

(b)  Carvick  v.  Vickery,  Dougl.  653  n. 

(c)  Holmes  t).  Higgins,  1  B.  &C.  74. 

(1)  Marsh  V.  Gold  et  al.  2  Pick.  Rep.  285.     Westerlo  v.Evertson, 

1  Wend.  Rep.  532.     Warner  et  al.  v.  Griswold,  8  Wend.  Rep.  665. 
And  between  physicians,    ^^llen  v.  Blanchard,  9  Cow.  Rep.  631. 

(2)  Lansdale  v.  Brashear,  3  Monroe's  Rep.  330.  So  there  may  be 
a  partnership  in  a  ferry.  Bowyer  v.  Jinderson,  2  Leigh's  Rep.  554. 

(3)  17  Serg.  &;  Rawle,  167.  But  where  two  persons  signed  a 
joint  note,  it  was  held,  that  it  was  not  evidence  of  a  partnership  existing 
between  them.  Hopkins  v.  Smith,  11  Johns.  Rep.  161.  It  has  been 
well  observed,  however,  in  relation  to  this  decision,  that  it  is  not  easy 
to  perceive  a  distinction  between  the  cases,  3  KenVs  Comm.  p.  30,  2d. 
Ed.     Partners  in  a  specific  purchase  or  adventure,  have,  in  relation  to 


OF  PARTNERRHIP. 


When  the  object  or  purpose  the  partners  have  in  view, 
in  forming  a  partnership,  is  clearly  and  distinctly  de- 
fined, and  the  contract  of  partnership  does  not  expressly 
or  impliedly  confer  upon  some  the  power  of  binding  all 
to  the  adoption  of  different  projects,  it  is  not  competent 
to  any  number  of  the  partners,  short  of  the  whole  of 
them,  to  engage  the  partnership  in  adventures  which 
are  incompatible  with  the  declared  object  or  purpose; 
because,  if  it  were  so,  an  individual,  by  engaging  in  one 
specified  concern,  might  be  implicated  in  any  other  con- 
cern whatever,  however  diflferent  in  its  nature,  against 
his  consent.  Each  partner,  therefore,  has  the  power  of 
insisting  that  the  original  contract  of  partnership  shall 
not  be  contravened  by  an  extension  of  its  purposes ;  and 
he  is  not  deprived  of  that  power,  notwithstanding  the 
other  partners  oflfer  to  indemnify  him  against  the  loss 
that  may  be  sustained  by  their  embarking  in  transac- 
tions which  were  not,  in  the  first  instance,  intended  to 
form  a  part  of  the  partnership  concern :  for,  whilst  the 
partnership  continues,  the  right  of  a  partner  is 
to  hold  his  co-partners  to  the  *specified  purposes  [  *7  ] 
of  their  association,  and  not  to  rest  upon  indem- 
nities with  respect  to  what  he  has  not  contracted  to 
engage  in.(a)  And  this  principle  (upon  which  a  court 
of  equity  will  act  in  the  case  of  a  common  partnership) 
applies  with  equal  force  to  all  companies  or  societies 
whose  objects  are,  at  the  time  of  their  institution,  de- 
fined, and  who  are  not  purposely  invested  with  a  power 
of  binding  the  body  by  a  majority,  or  any  select  part  of 

(«)  Natusch  V.  Irving,  Appenflix,  post. 


that  adventure,  all  the  rights,  and  are  subject  to  all  the  liabilities  of 
general  partners,  and  each  may  sign  a  note  in  the  names  of  all  for  the 
moneys  advanced,  or  services  rendered  in  relation  to  the  transaction  in 
which  they  are  partners  Cumpston  v.  McNair,  I  Wend.  Rep.  457. 
But  where  A.  and  B.  entered  into  a  contract  with  C.  for  a  conveyance 
from  him  to  them  of  a  farm,  for  which  tliey  were  to  pay  in  part  in  good 
negotiable  promissory  notes  to  be  endorsed  by  them ;  held,  that  this 
contract  did  not  constitute  them  special  partners,  so  that  one  could  bind 
the  other  by  an  indorsement  in  the  name  of  both  without  the  knowledge 
or  assent  of  the  other.  Balloiv  v.  Spencer  et  al.  4  Cow.  Rep.  163. 
And  see  Greenslade  v.  Dower  et  al.  6  Barn.  «fc  Cresw.  635. 

2 


OF  THE  CONTRACT 


it.  Such  companies,  if  there  be  one  dissentient  mem- 
ber, cannot  embark  in  undertakings  not  originally  con- 
templated; nor  can  they  compel  that  member  to  retire 
from  the  company  on  receiving  his  subscribed  capital 
and  interest,  in  order  thereby  to  leave  them  at  liberty 
to  pursue  their  extended  operations.  And  it  is  not  a 
sufficient  answer  to  the  requisition  of  the  shareholder 
who  calls  upon  the  company  to  observe  the  objects  for 
Avhich  the  company  was  formed,  to  urge,  that  he  may 
dispose  of  his  shares  at  a  price  considerably  beyond 
what  he  gave  for  them ;  because,  for  that  very  reason, 
coupled  with  having  the  partnership  concern  carried  on 
according  to  the  contract,  he  may  expect  augmented 
improvement  in  the  value  of  his  shares.(6)  A  covenant, 
in  articles  of  partnership,  that  none  of  the  partners  shall 
carry  on,  for  their  respective  private  benefit,  that  branch 
of  commerce  in  which  they  are  jointly  engaged,  is  not 
only  allowed,  but  is  the  constant  course.(c)  Indeed,  the 
principles  of  a  court  of  equity  will  not  permit  that  par- 
ties bound  to  each  other,  by  express  or  implied  agree- 
ment, to  promote  an  undertaking  for  their  common 
benefit,  should  any  of  them  engage  in  another  concern, 
which  necessarily  gives  them  an  interest  directly  adverse 
to  their  original  undertaking.(rf)  (1) 

In  considering  the  constitution  of  a  partnership,  the 
inquiry  will  be  chiefly  directed  to  its  requisites  in  rela- 
tion to  strangers  or  the  world  at  lars^e.  Inter  se  a  diffi- 
culty  seldom  arises.  The  question  is  generally,  not 
between  the  parties,  as  to  whether  a  partnership  is 
formed,  or  what  shares  they  shall  divide,  but  respecting 
creditors  claiming  a  satisfaction  out  of  the  funds  of  a 
particular  house,  who  shall  be  deemed  liable  in  regard 
to  these  funds.    For  when  a  partnership  is  entered  into 

(b)  Natusch  r.  Trvlng,  Appendix,  post. 

(c)  Morris  v.  Colman,  18  Ves.  438. 

{(i)  Glassington  v.  Thwaites,  1  Sim,  &.  Stu.  133.  And  see  Burton 
V.  Wookey,  0  Mad.  367. 


(1)  Coatea  v.  Coates,  6  Mad.  Rep.  287.  Cooper  v.  ffatson,  3  Dough 
Rep.  413. 


OF  PARTNERSHIP.  8 

by  persons  ^engaging  in  a  commercial  or  any  other  trade 
or  speculation,  there  is  usually  a  contract  or  agreement 
between  the  parties,  providing  for  its  existence,  and  de- 
fining the  rights  of  the  partners  respectively.  By  this 
contract,  where  it  subsists,  the  partnership  is  regulated  : 
if  there  be  not  an  express  agreement,  the  partnership,  as 
regards  its  regulation,  is  governed  by  the  contract  im- 
plied by  the  law  from  the  relation  of  the  parties.  In  the 
latter  case,  the  concurrent  opinion  of  all  the  writers  on 
the  civil  law  is,  that  the  loss  must  be  equally  borne,  and 
the  profits  equally  divided.(/)  And  by  the  law  of  Eyig- 
land^  where  a  partnership  is  constituted  by  the  mere  act 
of  trading  jointly,  each  of  the  persons  so  trading,  though 
liable  to°creditors  to  the  whole  extent  of  the  losses,  is 
only  responsible  inter  se  for  his  own  fdiquot  proportion 
of  them ;  and,  with  respect  to  the  profits,  each  will  be 
considered  as  equally  interested  in  the  joint  concern, 
unless  the  contrary  be  made  to  appear.  There  is,  in- 
deed, a  nisi  prius  decision,  in  which  it  seems  to  have 
been  assumed,  that  each  member  of  a  firm  is  not,  in  all 
cases  in  which  the  rights  of  the  partners  are  undefined, 
necessarily  entitled  to  an  equal  share  of  the  profits.  In 
that  case,  a  father,  on  his  son's  coming  of  age,  told  him 
that  he  should  have  a  share  in  his  business,  and  the  son 
was  held  out  to  the  world  as  a  partner,  and  acted,  in 
that  capacity,  between  five  and  six  years ;  and  upon  an 
issue,  out  of  Chancery,  to  ascertain  the  son's  interest. 
Lord  Ellenhorough  said,  that  he  was  not  to  be  presumed 
to  be  entitled  to  a  moiety,  on  account  of  the  indefinite 
nature  of  the  agreement,  but  left  it  to  the  jury  to  con- 
sider what  was  a  fair  proportion,  under  the  particular 
circumstances  of  the  case ;  and  the  jury  gave  the  son 
one-fourth  part  of  the  profits.(^)  But  Lord  Eldon  has 
expressed  his  dissatisfaction  at  the  result  of  this  issue, 

(/)  Et  quidem  si  nihil  de  partibus  lucri  et  dainni  nominatim  conve-' 
nerit,  pequales  scilicet  partes  et  in  lucro  et  in  damno  spectantur.  Quod 
si  expressae  fuerint  partes,  hae  servari  debent.  Neo  enim  unqnam  du- 
bium  fuit,  quin  valeat  conventio,  si  duo  inter  se  pact!  sint,  ut  ad  uiiuin 
quidem  dure  partes  et  lucri  et  damni  pertineant,  ad  aliuni  tenia,  Insiit. 
lib.  3.  t.  26.  s.  1. 

[g)  Peacock  v.  Peacock,  2  Campb.  45. 


OF  THE  CONTRACT 


observing,  that  he  had  no  conception  of  the  principle 
upon  which  a  jury,  on  the  footing  of  a  quantum  meruit^ 
could  have  held  the  son  entitled  to  a  quarter  share  only; 
for,  as  no  distinct  proportion  was  ascertained,  by  force 
of  any  express  contract  between  the  parties,  they  must, 

of  necessity,  have  been  equal  partners,  if  part- 
[  *9  ]    ners  in  any  thing.(A)(l)     *However,  articles  of 

partnership  are,  in  most  cases,  executed  at  the 

ill)  S.  C.  16Ves.  56. 


(1)  "  Lorsque  I'acte  de  Societe  ne  determine  point  la  part  de  chaque 
associe  dans  les  benefices  ou  partes,  la  part  de  chacun  est  en  proportion 
de  sa  mise  dans  le  fonds  de  la  societe. 

"  A  regard  de  celui  qui  n'a  apporte  que  son  Industrie,  sa  part  dans 
les  benefices,  ou  dans  les  perles,  est  reglee  comme  si  sa  mise  eut  ete 
egale  a  celle  de  I'associe  que  a  le  moins  apporte." 

{Code  Civil,  Art.  1853.) 

It  is  obvious  that  the  case  of  more  than  two  persons  constituting  a 
partnership  is  contemplated  by  this  provision.  The  rule,  however, 
seems  to  be,  in  the  case  of  tivo  persons  contracting  the  partnership 
relation,  one  of  whom  furnishes  capital,  and  the  other  industry  or  skill, 
without  ascertaining  by  express  agreement  the  proportions  in  which 
they  are  to  share  the  profits,  or  divide  the  losses,  the  same  as  laid  down 
by  Lord  Eldon.  "  D'apres,  cette  loi  positive,"  says  Mons.  Hutteau, 
in  a  note  to  Pothier,  Contrat  de  Societe,  page  12,  (edit.  Paris,  1807, 
Svo.)  "  il  fault  necessairement  faire  a  I'espece  proposee  par  ^l.  Pothier 
rapplioalion  de  I'art.   1853  du  Code  Civil. 

"  Voyons  les  deux  cas  :  Ou  le  capilaliste  a  stipule  qu'il  preleveroit 
sa  mise  au  fonds  ;  et  alors  ce  qui  reste  devient  benefice :  s'il  n'y  a  que 
deux  associes  celui  qui  en  est  pour  son  industrie  partage  egalement  ce 
benefice  avec  Thomme  qui  a  avance  ses  fonds ; 

"  Ou  il  n'esl  pas  stipule  que  le  caiptaliste  prelevcra  ses  fonds :  dans 
ce  cas,  il  semble  que  la  decision  doit  toujours  etre  la  meme,  parceque 
I'art.  1833  suppose  que  le  capitaliste  doit  avant  tout  retirer  sa  mise,  et 
qu'il  n'y  a  de  partage  a  faire  que  des  benefices  qui  excedent. 

"  Mais  que  doit  on  dire  si  les  raises  ne  sont  plus  entieres  par  les 
pertes  qu'a  eprouvee  la  societe  ? 

"  C'est  toujours  le  cas  d'appliquer  la  derniere  disposition  de  I'art. 
1853  La  perte  est  de  500  francs  sur  la  mise  de  fond  du  capitaliste, 
V.  g.;  cc  dernier  en  supporte  la  moilie,  et  I'associe  pour  son  industrie 
doit  pour  indeninite  les  250  francs  au  capitaliste.  On  voit  que  nous 
parlous  d'un  principe,  ce  que  nous  supposons  toujours  que  la  mise  des 
fonds  doit  etre  prelevee  ;  mais  a  cet  egard,  c'est  par  suite  de  I'induction 
que  nous  tirons  des  expressions  de  I'art.  cite."  See,  also  Ordenanzas 
de  Bilboa,  page  77,  cap.  10,  num.  14.  Palexfs  Mor.  Phil.  chap.  xiii. 
page  112,  {edit.  Lon.l.  1817.)  Mackenzie's  Inst.  Scot.  Law,  192,  {edit. 
Edin.  1723,  12mo.) 


OP  PARTNERSHIP.  9 

time  the  partnership  is  constituted,  and  they  are  capa- 
ble of  being  determined  legally  by  their  expressive  form. 
The  duties  and  obligations,  as  well  as  the  rights  of  the 
partners  inter  se,  being  ascertained  and  defined  by  the 
several  provisions  contained  in  such  articles,  they  are 
regulated,  and  can  alone  be  enforced,  consistently  with 
the  terms  and  stipulations  agreed  upon.  With  reference 
to  their  own  individual  interests,  and  as  a  matter  of  pri- 
vate arrangement,  joint  traders  may  stipulate  among 
themselves  that  they  are  severally  to  be  responsible  only 
for  their  own  losses  and  defaults,  or  they  may  contract 
for  any  specific  apportionment  of  the  losses  in  their  dis- 
cretion. The  same  observation  applies  to  the  profits, 
the  division  and  distribution  of  which  is  more  peculiarly 
the  object  of  compact  or  agreement.  In  fact,  the  various 
stipulations  and  provisions,  relating  to  the  commence- 
ment of  the  partnership,(/)  the  manner  in  which  the 
business  is  to  be  conducted,  the  space  of  time  for  which 
the  partnership  is  to  endure,  the  capital  each  is  to  bring 
into  the  trade,  the  proportion  in  which  the  profits  and 
loss  are  to  be  divided,  the  time  and  manner  agreed  upon 
for  settling  the  accounts,  the  powers  and  duties  of  the 
partners  in  regard  to  conducting  the  business,  and  enter- 
ing into  engagements  which  may  afiect  the  co-partner- 
ship, the  mode  in  which  the  partnership  may  be  dissolved, 
together  with  the  various  covenants  adapted  to  the  cir- 
cumstances of  each  particular  case,  are  purely  and 
entirely  the  subject  of  personal  and  private  agreement 
and  arrangement;  and,  in  whatever  way  they  may  ulti- 
mately be  settled,  they  cannot  be  impeached,  unless  they 
interfere  with  or  contravene  any  rule  or  principle  of  law. 
But  although,  where  a  partnership  has,  for  its  basis, 
written  articles,  the  diflferent  provisions  of  which  have 
been  acted  upon  and  observed  by  the  partners,  those 
articles  are  to  be  regarded  as  suppljnng  the  rule  by 
which  to  determine  any  disagreement  between  them, 
yet  the  subsequent  transactions  of  the  partners  may 
control  and  supersede  clauses  in  those  articles,  or  may 
furnish  evidence  of  a  new  agreement  different  from  the 

(i)  See  Williams  v.  Jones,  5  B.  &  C.  108. 


y  OP  THE  CONTRACT 

written  articles,  provided  those  transactions  show  a  pro- 
babiHty,  amounting  ahnost  to  demonstration,  that  the 
articles  were  otherwise  intended ;  for,  whatever  may  be 

the  language  of  a  partnership-deed,  *the  dealings 
[  *10  ]  and   transactions  among  the  partners  may  be 

such  as  to  amount  to  distinct  evidence,  that  some 
of  the  articles  in  that  deed  were  waived  by  all  parties, 
and  were  not  to  be  considered  as  rules  which  should 
regulate  the  rights  and  duties  of  the  partners.(^) 

A  partnership  may  legally  subsist  as  between  indivi- 
duals and  the  world,  and  yet  not  as  between  the  indivi- 
duals themselves.(l)  For  the  former  purpose,  appearing 
as  partners,  or  participating  in  the  profits  of  a  trade,  is 
sufficient ;  for  the  latter,  the  parties  must  have  joint 
shares  in  the  stock,  and  must  be  jointly  interested  in  the 
general  trade  or  the  particular  adventure.(/)  (2)  Thus, 
where  it  was  agreed  between  two  persons  that  one  of 
them  should  furnish  goods  on  an  adventure,  the  profits 
of  which  were  to  be  equally  shared  with  the  other,  it 
was  held,  that  as  between  themselves,  no  partnership 
was  formed,  for  that  the  division  of  profits  was  merely 
a  mode  of  remunerating  trouble  and  credit ;  but  that 
they  were  liable  as  partners  to  third  persons.(m)  And 
a  right  to  share  in  the  profits  of  a  particular  adventure 
will  render  a  person  liable  to  third  persons,  as  a  partner, 

(k)  Geddes  v.  Wallace,  2  Bligh,  270,  and  see  Jackson  v.  Sedgwick, 
1  Swanst.  469.     Petty  v.  Janeson,  6  Madd.  146. 

(/)  Hesketh  v.  Blanchard,  4  East,  141.  (m)  Id.  Ibidi 


(1)  Gill  V.  Xuhn,  6  Serg.  &  Rawle,  337.  Post  v.  Kimberly,  9 
Johns.  Rep.  489.  Dob  v.  Halseij,  17  Johns.  T?ep.  40.  Bailey  v, 
Clark,  6  Pick.  Rep.  372.     Bostwick  v.  Champion,  1 1  Wend.  508. 

(2)  It  is  not  necessary  that  all  the  j)artners  should  contribute  money, 
or  in  equal  proportion — it  is  sufficient  if  they  contribue  what  is  equiva- 
lent to  money.  Nor  is  it  required  that  all  should  share  equally  in  the 
profits  and  losses.  Therefore,  where  one  person  furnishes  a  license, 
and  the  aid  of  his  name,  in  consequence  of  which  he  is  to  share  in  half 
the  profits  of  the  voyage,  and  another  supplies  the  cargo,  a  partnership 
exists  between  the  parties.  The  Herkimer,  Stewart's  V.  Adm.  Rep. 
23,  24.  A  business  in  which  two  are  engaged,  but  having  no  mutual 
interest  in  the  capital  invested,  and  no  stipulation  for  mutual  loss,  is 
not  a  co-partnership.  Loicry  v.  Brooks,  2  McCord's  Rep.  421.  Bai- 
ley V.  Clark,  6  Pick.  Rep.  372. 


OF  PARTNERSHIP.  10 

in  respect  of  transactions  arising  out  of  the  particular  ad- 
venture in  the  profits  of  which  he  is  to  participate;  but 
still  it  does  not  invest  him  with  the  character  of  partner 
inter  sc,  nor  does  it  give  him  any  interest  in  the  property 
itself  which  is  the  subject-matter  of  the  adventure  ;  the 
power  over  the  property  remains  in  the  person  who 
furnished  the  capital  with  which  it  was  purchased.(?i)  (1) 
And,  notwithstanding  a  person,  who  is  not  in  fact  a 
partner,  may  incur  the  responsibilities  of  a  partner  to 
those  who  are  unconnected  with  the  firm,  it  does  not 
follow  that  he  contracts  the  same  responsibilities  as  be- 
tween himself  and  the  firm.     For  although  a  joint  and 
mutual  liability  necessarily  attaches  upon,  and  results 
from,  a  co-partnership,  it  is  not  a  consequence  that  it 
necessarily  constitutes  one,  or  that,  as  there  can  be  no 
partnership  without  a  joint  responsibility,  there  can  be 
no  joint  responsibility  without  a  partnership.     Thus,  a 
servant  or  manager,  engaged  in  a  partnership  concern, 
who  acts  as  one  of  the  partners  in  the  partner- 
ship, is  unquestionably  a  *partner,  with  respect  [  *11  ] 
to  the  world,  and  liable  for  loss  to  the  creditors 
of  the  partnership,  yet  he  is  not  so  liable  as  between 
himself  and  his  employers.     Such  a  partner  stands  dis- 
tinguished from  the  others -in  the  nature  of  his  interest; 
he  is  one  capable  of  being  dismissed  at  any  time,  and, 
as  he  has  no  stock  in  the  partnership,  he  consequently 
can  exercise  no  dominion  over  any  part  of  it.    It  would, 
indeed,  be  singular  if  he  were  to  be  held  responsible 
ijiter  se ;  because  if,  in  any  one  year,  his  proportion  of 
a  loss  amounted  to  a  sum  which  equalled  or  fell  short  of 
his  salary,  that  proportion  would  substantially  or  pro 
tanto  extinguish  his  right  of  claiming  the  salary.   There- 
fore, in  a  case  which  was  recently  before  the  House  of 
Lords,  in  which  it  appeared  that  the  appellant  was  en- 
gaged as  manager  of  the  Glasgow  Glasswork  Company  at 
an  annual  stipend,  and  that,  for  the  purpose  of  creating  an 
addition  to  his  stipend,  and  thereby  of  securing  his  skill 

(n)  Smith  v.  Watson,  2  B.  &  C.  401. 
(1)  See  Simpson  v.  Feltz,  1  McCord's  Cha.  Rep.  219. 


11  OF  THE  CONTRACT 

and  industry,  he  was  also  to  have  a  share  of  the  profits, 
to  be  calculated  according  to  a  proportion  of  capital  and 
stock  not  advanced  by  him,  but  assigned  by  way  of 
nominal  interest ;  it  was  determined  that  he  was  not  a 
partner  subject  to  loss  in  account  with  the  other  part- 
ners. And  in  that  case  it  was  also  considered  that  the 
manager  was  not  liable  for  loss,  although  it  was  ex- 
pressed in  the  articles  of  partnership  that  the  partners 
(not  accepting  the  manager)  were  to  be  subject  of  profit 
and  loss,  and  although  the  manager  signed  the  partner- 
ship books,  joined  in  securities  given  by  the  partnership, 
and  in  most  other  partnership  acts,  including  the  adver- 
tisement for  a  dissolution ;  because  it  appeared,  from 
the  general  structure,  and  all  the  provisions  of  the  con- 
tract taken  and  construed  together,  as  well  as  from  the 
transactions  between  the  parties  and  the  conduct  of  the 
other  partners,  that  the  provision,  as  to  profit  and  loss, 
was  not  intended  to  apply  to  the  manager.(o)  In  a  late 
case  it  was  held  that  the  assignee  of  a  partner,  who  had 

never  been  acknowledged  a  partner,  nor  been 
[  *12  ]  permitted  to  act  in  *that  character,  did  not,  by 

mere  acceptance  of  the  assignment,  incur  a  liar;^ 
bility  for  losses  as  between  himself  and  the  other  part- 
ners.(p) 

(o)  Geddes  v.  Wallace,  2  Bligh,  270.  The  partnership  was  dis- 
solved in  1792,  and  no  demand  was  made  of  the  losses  until  1807,  al- 
though in  the  intermediate  time  the  parties  were  engaged  in  a  protracted 
litigation,  which  furnished  occasion  to  make  the  claim,  if  the  right  ex- 
isted ;  and  it  was  decided  that  although  the  partnership  articles  and  the 
transactions  of  the  partners  might  have  supplied  unequivocal  proof  of 
the  liability  of  the  manager  to  loss,  yet  that  the  laches  of  the  re^spondents 
would  have  so  weakened  and  destroyed  that  proof,  as  that  a  court  could 
not  have  acted  upon  the  efTect  of  it.     Id.  ibid. 

(p)  JefFerys  v.  Smith,  3  Russ.  158.  Where  A.,  a  partner  in  a  con- 
cern, entered  into  an  executory  contract  with  B.  to  assign  his  interest 
in  the  business,  and  the  latter  interfered  and  acted  as  a  partner,  but 
subsequently  assigned  his  share,  and  gave  notice  to  the  other  partners 
of  his  having  withdrawn,  and  afterwards  refused  to  complete  the  con- 
tract of  purchase  with  A.,  on  the  ground  that  a  good  title  could  not  be 
made;  it  was  determined  that  as  between  the  partners,  B.  was  liable  to 
contribute  to  the  partnership  losses  up  to  the  time  of  assigning  and 
giving  notice  of  his  withdrawal,  but  that  such  liability  thereupon  ceased, 
and  the  assignment  was  not  the  less  effectual,  though  made  to  an  insol- 
vent party,  and  in  order  to  put  an  end  to  that  liability.     Id.  ibid. 


OP  PARTNERSHIP.  12 

We  will  now  consider  what  constitutes  a  partnership, 
as  regards  persons  dealing  or  contracting  with  parties 
standing  in  the  relation  of  joint  traders;  and,  in  this  in- 
vestigation, the  question  what  constitutes  a  partnership 
inter  se,  will  both  directly  and  incidentally  arise.  But  it 
may  be  premised,  that,  wherever  the  existence  of  a  part- 
nership, as  to  third  persons,  is  established,  the  presump- 
tion of  law  is,  that  a  partnership  exists  between  the  par- 
ties themselves. (y) 

The  question,  to  whom  the  character  and  denomina- 
tion of  partner,  with  respect  to  third  persons,  attaches, 
will,  in  the  manner  we  propose  to  examine  it,  admit  of 
consideration  under  three  different  heads:  In  the  first 
place,  we  will  inquire  what  constitutes  an  actual  osten- 
sible partner;  secondly^  what  satisfies  the  appellation  of 
a  secret  or  dormant  partner;  and  thirdly,  we  will  state 
what  is  sufficient  to  fix  upon  a  party  the  character  of 
a  nominal  partner.  An  actual  ostensible  partner  is  a 
party  who  not  only  participates  in  the  profits  and  con- 
tributes to  the  losses,  but  who  appears  and  exhibits  him- 
self to  the  world  as  a  person  connected  with  the  partner- 
ship, and  as  forming  a  component  member  of  the  firm. 
A  dormant  partner  is  likewise  a  participant  in  the  profits 
and  a  contributor  to  the  losses  of  the  trade;  but  his  name 
being  suppressed  and  concealed  from  the  firm,  his  interest 
is  consequently  not  apparent.(l)  A  nominal  partner  has 
not  any  actual  interest  in  the  trade  or  its  profits,  but,  by 
allowing  his  name  to  be  used,  he  holds  himself  out  to 
the  world,  as  apparently,  having  an  interest. 

An  actual  ostensible  partner,  qua  partner,  is  clearly 
answerable  for  the  debts  and  engagements  of  the 
partnership.  In  *his  person,  all  and  more  than  [  *13  ] 
is  necessary  to  entail  liability  is  concentrated. 
He  is  entitled  to  a  proportionate  share  in  the  distri- 
bution of  the  profits,  and  his  name  is  likewise,  with  his 
own   consent,   introduced  as  composing  a  constituent 

{q)  Peacock  v.  Peacock,  2  Campb.  45. 


(1)  Kelley  et  at  v.  Hurlburt  el  al,  5  Cow.  Rep.  534.     Mitchell  v. 
Ball,  2  Har.  &  Gill,  172. 

3 


13  OF  THE  CONTRACT 

part  of  the  firm.  Either  his  right  to  a  share  of  the  pro- 
fits, or  the  permitted  exhibition  of  his  name  as  partner, 
would  be  sufficient  to  render  him  responsible.  The  for- 
mer would  subject  him  to  liability,  because  strangers,  or 
third  persons,  in  the  consideration  of  the  law,  give  credit 
and  trust  to  the  general  profits  of  the  trade,  and  conse- 
quently to  each  and  all  of  the  persons  participating  or 
concerned  in  the  profits,  as  if  they  were  partners :  and 
the  latter  would  be  equally  effective  against  him  in  that 
respect,  since  third  persons,  dealing  with  the  firm,  have 
a  right  to  conclude  that  a  party  who,  by  his  own  acts, 
identifies  himself  with  the  partnership,  in  the  character 
of  partner,  does  actually  and  in  fact  sustain  that  cha- 
racter with  which  he  represents  himself  to  be  clothed. 
There  can  be  no  doubt,  indeed,  but  that  such  a  person 
fills  the  relation  of  partner  with  respect  to  strangers. 
It  will,  in  this  place,  therefore,  be  only  necessary  to  ob- 
serve, in  respect  to  joint  stock  companies,  that  a  party, 
paying  his  deposit  on  shares,  and  afterwards  signing  the 
deed  of  partnership,  has  been  held  to  be  a  partner  from 
the  time  of  depositing,  as  a  recognition  of  the  payment 
in  a  transaction  connected  with  the  partnership,  and 
consequently  liable  for  all  supplies  subsequent  to  that 
period,  (r)  We  will  now  proceed  to  examine  in  what 
cases  a  party  partaking  of  the  profits  of  a  trade,  but 
whose  name  is  not  suflfered  to  appear  in  the  copartner- 
ship firm,  is  considered  as  superinducing  a  liability  as 
partner,  in  respect  to  the  fulfilment  of  the  engagements 
of  the  partnership.  This  inquiry  will,  in  a  great  mea- 
sure, have  for  its  object  the  ascertainment  of  what  con- 
stitutes a  dormant  partner,  since,  except  in  the  instance 
of  such  a  partner,  the  question  but  seldom  arises. 

It  may  be  laid  down  as  a  clear  and  well-estabhshed 
principle  of  law,  founded  upon  reasons  of  policy,  that 
whoever  has  a  right  to  share  in  the  profits  of  a  trade,  or 
particular  adventure,  or  has  a  specific  interest  in  the 
profits  themselves,  as  profits,  becomes  chargeable  as  a 
partner   to  third   persons,   in    respect   of  transactions 

(r)  Lawler  v.  Kershaw,  1  M.  &  Mai.  93.  And  See  Vice  v.  Lady 
Anson,  lb.  96.     S.  C.  1  Mann.  &  Ryl.  113.  and  7  B.  &;  C.  409. 


OF  PARTNERSHIP.  14 

arising  out  of  the  trade  or  particular  adventure, 
in  the  ^profits  of  which  he  is  to  participate.(s)  (1)  [*  14  ] 
The  reason  why  such  a  person  becomes,  by  im- 
phcation  and  operation  of  law,  clothed  with  the  charac- 
ter of  partner,  is,  that  by  the  effect  of  the  agreement  for 
a  participation,  the  party  participant  takes  from  the 
creditors  a  part  of  that  fund  which  is  the  proper  secu- 
rity to  them  for  the  satisfaction  of  their  debts,  and  upon 
which  they  rely  for  payment.  (0  (2)      Another  reason 
assigned  for  subjecting  a  dormant  partner  to  responsi- 
bility is,  that  if  he  were  exempted,  he  would  receive  usu- 
rious interest  for  his  capital,  without  its  being  attended 
with  any  risk.(z<)  The  general  principle  was  recognised 
in  a  modern  case,  where  an  agreement,  which  did  not 
constitute  a  partnership  between  the  parties  to  it,  was 
nevertheless  held  to  subject  them  to  responsibility,  in  the 
character  of  partners,  to  third  persons.    In  that  case,  (v) 
A.,  having  neither  money  nor  credit,  proposed  to  B., 
that  if  he  would  order,  with  him,  certain  goods  to  l3e 
shipped  upon  an  adventure,  if  any  profit  should  arise 
from  them,  B.  should  have  one  half  for  his  trouble  ;  and  B. 
having  acceded  to  this  proposition,  it  was  decided  that 
he  was  liable  as  a  partner  to  creditors,  although  the  con- 
tract did  not  constitute  a  partnership  between  A.  and 
B.,  (3)  but  was  merely  an  agreement  for  a  compensation 

(«)  Metcalf  V.  Royal  Exch.  Ass.  Company,  Barnard,  343.  Grace 
V.  Smith,  2  Blacks.  998.  Ex  parte  Hamper,  17  Ves.  404.  Ex  parte 
Langdale,  18  Ves.  301.  Ex  parte  Gellar,  1  Rose,  297.  Fremont  v. 
Coupland,  2  Bingh.  170. 

(/)  Per  De  Grey  C.  J.,  Grace  v.  Smith,  supra. 

{u)  Per  Lord  Mansfield,  Hoare  v.  Dawes,  1  Dougl.  371. 

(v)  Hesketh  v.  Blanchard,  4  East,  143. 

(1)  Purviance  v.  McCl'mtee  et  at.  Gill  v.  Kuhn,  6  Serg.  &l  Rawle, 
259.  337.  Osborne  v.  Brennan,  2  Nott  &,  McCord's  Rep.  427. 
Brown  v.  Cook  et  al.  N.  Hampsh.  Rep.  64.  Taylor  v.  Terme  et  al.  3 
Harr.  &  Johns.  505.  Dwight  et  al  v.  Brewster  el  al.  1  Pick.  Rep. 
50.  Dob  V.  Halsey,  16  Johns.  34.  Simpson  v.  Feltz,  1  McCord's 
Cha,  Rep.  218.     Everitt  v.  Chapman,  6  Conn.  347. 

(2)  Per  Spencer,  C.  J„  Dob  v.  Halsey,  16  Johns.  Rep.  40.  Per 
Curiam,  Freel  v.  Campbell  et  al.  3  llayw.  Rep.  {Tenn.)  78.  See  also 
6  Serg.  &  Rawle,  261,  262. 

(3)  Perrine  v.  Hankinson,  6  Halst.  Rep.  181.  Boss  v.  Drinker, 
2  Hall's  Rep.  415. 


14  OF  THE  CONTRACT 

for  trouble  and  credit.  And  it  has  been  determined, 
that  an  agreement  between  a  merchant  and  a  broker, 
that  the  latter  should  purchase  goods  for  the  former, 
and,  in  lieu  of  brokerage,  should  receive  for  his'  trouble 
a  certain  proportion  of  the  profits  arising  from  the  sale, 
and  should  bear  a  proportion  of  the  losses,  did  not  vest 
in  the  broker  any  share  in  the  property  so  purchased,  or 
in  the  proceeds  of  it,  although  it  rendered  him  liable  as 
a  partner  to  third  persons.  (!^5)  The  same  principle 
was  acted  upon  in  another  case.(x)  There  a  merchant 
in  London  recommended  consignments  to  a  merchant 
abroad;  and  it  was  agreed,  that  the  commission  on  all 
sales  of  goods  recommended  by  one  house  to  the  other 
should  be  equally  divided,  without  allowing  any  de- 
duction for  expenses:  and  it  was  determined, 
[  *15  ]  *  that- as  this  was  a  participation  in  profit,  it  con- 
stituted a  partnership  between  the  parties.  (1) 
And  where  a  broker,  employed  to  purchase  goods  for  a 
firm,  was  to  act  free  of  commission,  and  to  be  one-third 
interested  in  the  adventure,  he  was  held  to  be  a  partner 
with  his  employers.(^)  So,  where  the  clerk  of  an  at- 
torney, living  in  a  distant  town,  transacted  business  in 
the  name  of  the  latter  for  his  own  benefit,  but  made  an 
allowance  of  one-third  of  the  profit  to  the  attorney,  by 
way  of  remuneration  to  him  for  his  occasional  superin- 
tendence of  the  business,  Mr.  Justice  Richardson  was  of 
opinion,  that  such  a  division  of  the  profits,  notwithstand- 
ing its  illegality,  amounted  to  a  partnership.(z)     On  the 

{w)  Smith  V.  Watson,  2  B.  &  C,  401.  And  see  Keid  v.  HoUinshead, 
4  B.  &  C.  867. 

{x)  Cheap  V.  Cramond,  4  B.  &  A.  663. 

{y)  Reid  v.  HoUinshead,  4  B.  &  C.  867. 

(z)  Hopkinson  v.  Smith,  1  Bingh.  13.  S.C.  7  B.Moore,  237.  See 
Taylor  v.  Glassbrook,  3  Stark.  N.  P.  C.  75.  An  agreement  with  an 
unqualified  person,  to  assist  in  the  business  and  share  the  profits,  in  lieu 
of  salary,  is  to  be  considered  a  partnership ;  and  its  necessary  effect 
being  to  enable  another  to  practise  as  an  attorney,  and  to  use  the  name 
of  one  for  his  own  account  and  profit,  it  was  held  within  the  provisions 

(1)  Walilen  et  al.  v.  Shuhurne  et  al.,  15  Johns.  Rep.  409.  The 
question  whether  the  agreement,  as  between  the  parties,  in  Ferry  v. 
Henry,  4  Pick.  Rep.  75,  constituted  a  partnership,  was  not  decided. 


OF  PARTNERSHIP.  15 

same  principle,  where  the  creditor  of  a  firm  agreed  to 
share  in  the  profit  and  loss  of  an  adventure  of  which  the 
goods  were  to  be  supplied  by  his  debtors,  and  his  debt 
was  to  be  reimbursed  to  him  from  the  returns  of  the  ad- 
venture, and  after  that  he  was  to  have  his  share  of  profit 
proportionable  to  the  amount  of  the  sum  due  to  him; 
on  an  action  by  the  seller  of  the  goods  against  the  cre- 
ditor and  his  debtors,  it  was  held  that  they  were  part- 
ners in  this  transaction,  and  therefore  jointly  liable,  as 
the  agreement  was  antecedent  to  the  purchase  of  the 
goods,  although  the  creditor  did  not  appear  as  a  joint 
purchaser  at  the  time  of  the  purchase  :(a)  but  if  the 
goods  had  been  first  purchased,  and  the  respective  par- 
ties had  entered  into  a  subsequent  agreement  of  the 
above  nature,  the  creditor,  whose  name  did  not  appear 
in  the  purchase,  would  not  have  been  liable  to  the  seller, 
though  responsible  for  any  subsequent  engagement  rela- 
tive to  the  particular  adventure  ;(h)  (1)  nor  would  a  sub- 
sequent acknowledgment  of  his  liability  constitute  him 
a  partner  antecedent  to  the  period  when  his  joint 
liabihty  commenced.(c)  *When  different  persons  [  *16  ] 
purchase  goods,  each  on  his  separate  credit,  and 
afterwards  join  them  in  one  common  adventure,  of  which 
they  are  to  share  the  profit  and  loss,  they  become  part- 
ners from  the  time  of  making  the  agreement,  but  not 
until  the  community  of  interest  has  taken  place.(c?) 
And  the  executors  of  a  deceased  partner,  whose  names 
are  not  added  to  the  trade,  but  who  continue  his  share 
of  the  partnership  property  in  the  concern,  for  the  benefit 
of  his  infant  child,  and  who,  on  a  division  of  the  profits 

of  the  22  G.  2.  c.  46.  s.  11.  Tench  v.  Roberts,  6  Mad.  145.  But  an 
agreement  by  the  widow  of  a  deceased  attorney  with  her  son,  to  carry 
on  the  business,  and  to  share  the  profits,  during  a  certain  period,  for  the 
mixed  consideration  of  the  goodwill  of  the  business,  the  advance  of 
money,  and  family  affection,  is  neither -within  the  mischief  nor  the 
words  of  the  statute.     Candler  v.  Candler,  Ibid.  141. 

(a)  Gouthwaite  v.  Duckworth,  12  East,  421. 

(b)  Id.  ibid.     Savilie  v.  Robertson,  4  T.  R.  720. 

(c)  Id.  ibid.  (d)  Id.  ibid.  Savilie  v.  Robertson,  4  T.  R.  770. 


(1)  See  Smith  v.  Edwards,  2  Harr.  &  Gill.  411. 


16  OF  THE  CONTRACT 

and  loss,  carry  the  same  to  the  account  of  the  infant, 
and  take  no  part  of  the  profits  themselves,  are  liable  as 
dormant  partners,  because,  by  embarking  the  property 
in  trade  in  the  first  instance,  they  contract  a  responsi- 
bility in  a  court  of  law,  which  their  subsequent  applica- 
cation  of  the  profits  to  purposes  not  of  personal  benefit 
cannot  vary.(e)  (1)  Nor  can  the  responsibility  attaching 
upon  a  participator  in  the  profit  be  varied  or  altered  by 
any  private  arrangement  or  stipulation.  As  regards  his 
own  individual  interest,  with  reference  to  himself  and 
his  co-partners,  he  may  stipulate  and  provide  for  a  con- 
tracted responsibility;  such  as,  that  he  is  not  to  be  liable 
for  losses,  or  that  he  is  merely  to  sustain  his  own,  or  to 
bear  only  a  proportionate  amount  of  the  losses;  but  a 
stipulation  or  provision  of  such  a  description  will  not, 
in  any  manner,  affect  or  limit  his  liability  to  persons 
dealing  with  the  firm.  The  covenant  or  agreement  of 
the  partners  cannot  be  binding  upon  their  creditors,  but 
only  upon  themselves.(/)  In  questions  with  third  per- 
sons, as  was  remarked  by  Lord  Eldon  in  a  recent 
case,(^)  no  stipulation  or  secret  agreement  can  protect 
a  party  firom  loss,  because  the  law  itself,  to  the  right  of 
receiving  the  profits  of  the  trade,  annexes  a  responsi- 
bility for  the  losses.  Therefore,  where  two  ship  agents, 
at  diflferent  ports,  entered  into  an  agreement  to  share, 
in  certain  proportions,  the  profits  of  their  respective 
commissions,  "and  the  discount  on  the  bills  of  tradesmen 
employed  by  them  in  repairing  the  ships  consigned  to 
them,  and  the  agreement  provided,  that  neither  should 
be  answerable  for  the  acts  or  losses  of  the  other,  but 

(e)  Wightman  v.  Townroe,  1  Man.  &  Selw.  412.  See  also  JE^a: /)ar/e 
Richardson,  Buck.  242,  421.  Co.  B.  L.  (7th  ed.)  74. 

(/)  Waugh  V.  Carver,  2  H.  Bl.  235.  Lord  Craven  v.  Widdows,  2 
Ch.  Ca.  139. 

(^)  Ex  parte  Hamper,  17  Ves.  412. 


(1)  Alsop  V.  Mather,  8  Conn.  Rep.  584.  Nash  v.  Tinker,  cited  8 
Conn.  Rep.  587.  The  Court  of  Chancery  sometimes  order  a  trade  to  be 
carried  on  by  executors  for  the  benefit  of  infants,  under  its  direction, 
and  in  such  case  they  would  not  be  personally  responsible.  Thompson 
V.  Brown  et  al.  4  Johns.  Cha.  Rep.  619. 


OF  PARTNERSHIP.  17 

each  for  his  own ;  it  was  held,  that  by  this  agreement 
they  became  hable,  as  partners,  to  all  persons 
with  *whom  either  contracted  in  his  character  of  [  *17  ] 
ship  agent.(A)     And  this  legal  responsibility  is 
not  to  be  measured  or  computed  by  the  extent  of  each 
partner's  interest  in  the  concern,  since  whatever  the 
share  of  the  profits  to  which  he  is  entitled  may  be,  how 
great  soever  the  inequality  between  the  stipulated  profit 
he  may  derive  and  the  loss  he  will  sustain,  if  subjected 
to  general  responsibility,  it  is  immaterial  to  those  who 
deal  with  the  partnership,  notwithstanding  that  a  limited 
and  contracted  liability  may  properly  form  matter  of 
private  regulation  amongst  the  partners  themselves.     In 
many  parts  of  Europe^  partnerships,  restrictive  as  to 
liability,  are  admitted,  provided  the  deed  or  instrument, 
regulating  the  co-partnership,  be  entered  on  a  register 
kept  for  that  purpose ;  but  the  law  of  Engla7id  is  other- 
wise, the  rule  being,  that  if  a  partner  shares  in  advan- 
tages, he  also  shares  in  all  disadvantages.(z)(l)     As 
between  the  members  of  a  firm  and  the  persons  having 
claims  upon  it,  each  individual  member  is  answerable, 
in  solido,  for  the  amount  of  the  whole  of  the  debts  con- 

(h)  Waugh  V.  Carver,  2  H.  Bl.  235. 

(i)  Per  Lord  Loughborough,  Coope  v.  Eyre,  1  H.  Bl.  37.  In  Ire- 
land, partners,  in  co-partnerships  formed  under  the  anonymous  part- 
nership act,  21  &;  22  G.  3,  c.  46,  s.  1,2,  are  only  liable  to  the  creditors 
of  the  concern,  to  the  extent  of  their  respective  shares  in  the  co-part- 
nership. 


(1)  The  law  in  Pennsylvania,  till  the  passage  of  the  act  of  21  March, 
1836,  entitled  "  An  Act  relative  to  limited  partnerships,"  (Pamp.  Laws, 
1836,  p.  143,  Appx.  No.  1.)  was  the  same  as  in  England,  (4  Serg.  & 
Rawle,  367.)  Limited  partnerships  are  authorized  by  statute  (Rev. 
Stat.  vol.  i.  763,  Appx.  No.  2.)  in  New  Fork,  in  Mai-yland,  (Acts,  Dec. 
Session,  1825,  chap.  113,  Appx.  No.  3.)  in  Massachusetts,  (Rev.  Stat, 
of  Mass.  4  Nov.  1835,  p.  304,  Appx.  No.  4.)  There  was  a  bill  before 
the  Legislature  of  New  Jersey  in  February,  1836,  to  authorize  limited 
partnerships,  but  it  did  not  become  a  law.  See  the  question,  as  to  the 
difficulties  attendant  upon  the  introduction  of  such  partnerships  into 
States  whose  laws  are  founded  on  those  of  England,  well  discussed  in 
the  Am.  Quarterly  Review,  for  March,  1836,  vol.  xix.  p.  48.  The 
Societe  en  Commandite  is  provide.d  for  in  Louisiana  by  the  Civil  Code, 
(Tit.  XL  chap.  2,  sec.  4,  Art.  2810  to  2822,  p.  888.) 


17  OF  THE  CONTRACT 

tracted  by  the  partnership,  without  reference  either  to 
the  extent  of  his  own  separate  beneficial  interest  in  the 
concern,  or  to  any  private  arrangement  or  agreement  that 
may  exist  between  himself  and  his  co-partners,  stipulating 
for  a  restricted  responsibility.(A;)(l)  And  upon  this  prin- 
ciple the  members  of  an  unincorporated  company  or 
society  are  liable  to  third  persons,  as  general  partners 
in  the  undertaking  for  which  the  company  or  society  is 
formed.(/)  (2)  Those  who  have  the  management  are,  it 
is  true,  answerable  to  the  whole  extent  of  their  engage- 
ments ;  but  even  as  between  them  and  the  members  of 
the  society,  each  individual  member  is  liable  to  a  con- 
tribution for  what  they  may  have  paid.(m) 

A  distinction,  however,  prevails  between  an  interest 
in  the  profits  themselves,  as  profits,  and  the  payment  of 

a  given  sum  of  money,  in  proportion  to  a  given 
[  *18  ]  quantum  of  the  profits,  as  the  *reward  of,  and  as 

a  compensation  for,  labour  and  services.  For  in- 
stance, a  remuneration  made  to  a  traveller  or  other  clerk 
or  agent  by  a  portion  of  the  sums  received  by  or  for  his 

{k)  Rex  V.  Dodd,  9  East,  527.  Rice  v.  Shute,  5  Burr.  2611.  Ab- 
bot V.  Smith,  2  W.  Blacks.  947.  Wright  v.  Hunter,  1  East,  20.  Dod- 
dington  v.  Hallet,  1  Ves.  sen.  497.  Lict.  Park,  J.,  Saltoun  v.  Hous- 
toun,  1  Bingh.  444. 

(/)  Rex  V.  Dodd,  9  East,  527.  Per  Lord  Eldon,  Carlen  v.  Drury, 
1  Ves.  &  Bea.  157,  and  Kinder  v.  Taylor,  MS. 

(m)  Carlen  v.  Drury,  supra. 


(1)  Shubrick^s  ex.  v.  Fisher  et  al.  2  Desaus.  Cha.  Rep.  148.  See 
Gill  et  al  v.  Kuhn,  6  Serg.  &  Rawle,  333. 

(2)  Hess  et  al  v.  Werts,  4  Serg.  &  Rawle,  356.  Robinson  v.  Robinson, 
1  Fairf.  Rep.  240.  JDousrlass.  Heron  ^  Co.  v.  Hair,  2  Bell's  Comm.  623. 
(4th  ed.  Edin.  1821.)  It  is  necessary,  however,  in  such  cases,  even  as 
regards  creditors,  that  the  party  sought  to  be  charged  as  a  partner, 
should  have  done  every  act  necessary  to  complete  the  acquisition  of 
an  interest  in  the  subject  matter  of  the  undertaking  for  which  the  com- 
pany or  society  is  formed,  or  he  will  not  be  responsible.  Therefore, 
where,  in  an  action  for  goods  supplied  for  the  purpose  of  working  a 
mine,  it  appeared  that  the  defendant  had  paid  money  for  certain  shares, 
and  received  a  certificate  that  she  was  a  proprietor  of  those  shares, 
and  that  she  had  acknowledged  that  she  was  a  share  holder,  but  no 
assiornment  of  any  interest  in  the  mine  had  been  made  to  her;  it  was 
held,  that  the  action  could  not  be  maintained.  Vice  v.  Lady  Anson,  7 
Barn.  &  Cresw.  409. 


OF  PARTNERSHIP. 


18 


subject  the  traveller,  clerk,  or  agent,  to  liability  as  a 
partner;  such  remuneration  being  merely  a  mode  of 
payment  adopted  to  increase  or  secure  exertion.  (1)  So 
a  factor  receiving  for  his  commission  a  pcr-centage  on 
the  amount  of  the  price  of  the  goods  sold  by  him,  in- 
stead of  a  certain  sum,  proportioned  to  the  quantity  of 
the  goods  sold,  does  not  thereby  become  a  partner,  (n) 
Neither  is  a  person  who  receives  from  a  trader  an  agreed 
sum  in  respect  of  goods  sold  by  his  recommendation,  as 
one  shilling  per  chaldron  on  coals  or  the  like,  to  be  con- 
sidered a  partner ;  for,  there,  there  is  no  mutuality,  such 
a  case  resembling  a  payment  made  to  an  agent  for  pro- 
curing orders,  and  having  no  distinct  reference,  in  the 
terms  of  the  agreement,  to  any  particular  coals  pur- 
chased by  the  coal-merchant  for  resale,  upon  which  a 
third  person  may  become  a  creditor  of  the  coal-mer- 
chant, (o)  The  distinction  was  i\oticed  with  regret  by 
Lord  Eldo?i  in  a  recent  case,(;?)  in  which  his  lordship 
expressed  himself  in  the  following  manner : — "  The  cases 
have  gone  farther  to  this  nicety,  upon  a  distinction  so 
thin,  that  I  cannot  state  it  as  established  upon  due  con- 
sideration, that  if  a  trader  agrees  to  pay  another  per- 
son for  his  labour  in  the  concern,  a  sum  of  money,  even 
in  proportion  to  the  profits,  equal  to  a  certain  share,  that 
will  not  make  him  a  partner ;  but  if  he  has  a  specific  in- 
terest in  the  profits  themselves,  as  profits,  he  is  a  part- 
ner. It  is  clearly  settled,  though  I  regret  it,  that  if  a 
man  stipulates,  that,  as  the  reward  of  his  labour,  he  shall 
have,  not  a  specific  interest  in  the  business,  but  a  given 
sum  of  money,  even  in  proportion  to  a  given  quantum 
of  the  profits,  that  will  not  make  him  a  partner;  but  if 
he  agrees  for  a  part  of  the  profits,  as  such,  giving  him 
a  right  to  an  account,  though  having  no  property  in  the 
capital,  he  is,  as  to  third  persons,  a  partner."     And  in  a 

(n)  Dixon  v.  Cooper,  3  Wils.  40. 
o)  Cheap  v.  Cramond,  4  B.  &  A.  670. 
/))  Ex  parte  Hamper,  17  Ves.  404. 


(1)  Miller  v.  Bartlett  et  al.  15  Serg.  &  Rawle,  137.   Simpson  et  al. 
V.  Feltz,  1  McCord's  Cha.  Rep.  219. 

4 


18  OF  THE  CONTRACT 

still  later  case,  (^)  the  same  very  learned  lord  is  reported 
thus  to  have  observed:  "It  is  impossible  to  say,  as  to 
third  persons  they  are  not  partners ;  the  ground  being 
settled,   that  if  a  man,  as  a  reward   for   his    labour, 

chooses  to  stipulate  for  an  interest  in  the  pro- 
[  *19  ]  fits    *of  a  business,  instead   of  a  certain  sum 

proportioned  to  those  profits,  he  is,  as  to  third 
persons,  a  partner,  and  no  arrangement  between  the 
parties  themselves  can  prevent  it."  Having  alluded 
to  the  opinion  entertained  by  Lord  Eldon  of  this  re- 
fined, but  known  distinction,  it  will  not  be  improper 
now  to  advert  to  the  decisions  by  which  that  distinction 
has  been  settled  and  established.  In  the  first  case  on 
the  subject,  (r)  a  broker  was  employed  to  sell  goods,  un- 
der an  agreement  that  he  was  to  have,  for  his  own  pro- 
fit, whatever  he  could  obtain  upon  the  sales  beyond  a 
stated  sum,  as  a  reward  for  his  trouble ;  and  it  was  held, 
that  the  broker  was  not  a  partner  with  the  owner  of  the 
goods,  nor  did  such  an  agreement  constitute  a  liability 
in  that  capacity  to  third  persons.  So  a  sailor,  employed 
in  the  whale  fishery,  who  is  to  receive  a  certain  propor- 
tion of  the  profits  as  wages,  is  not  liable  as  a  partner.(s) 
And  an  agreement  to  pay  one  fifth  of  the  profit  or  loss 
of  a  voyage  in  lieu  of  wages,  primage,  &c.  does  not 
constitute  a  partnership  between  the  captain  and  sail- 
ors, {t)  So,  where  (ii)  the  proprietor  of  a  lighter  agreed 
with  a  person  who  w  orked  the  lighter,  that,  in  conside- 
ration of  working  her,  the  latter  should  receive  one  half 
of  the  gross  earnings  for  his  labour,  it  was  ruled  by  Lord 
Ellenhormigh^  that  such  an  agreement  did  not  constitute 
a  partnership,  it  being  merely  a  mode  of  paying  wages 
for  labour;  but  that  it  would  have  been  otherwise,  had 
the  agreement  been  that  the  two  were  to  share  the  pro- 
fits arising  from  the  working  the  lighter.  (1)     The  same 

(9)  Ex  parte  Rowlandson,  1  Rose,  89.     See  also  Ex  parte  Watson, 

19  Ves.  461. 

(r)  Benjamin  v.  Porteus,  2  H.  Bl.  590. 
(s)  Wilkinson  v.  Frazier,  4  Esp.  182. 
{t)  Mair  V.  Glennie,  4  Man.  &  Sehv.  240. 
(w)  Dry  V.  Boswell,  1  Campb.  329. 

(1)  Rice  V.  Jlustin,  17  Mass.  Rep.  197.     Cutler  v.  Winsor,  6  Pick. 


OF    PARTNERSHIP.  19 

principle  was  acted  upon  in  the  case  of  "  Wish  v. 
Small,(v)  where  an  agreement  between  two  persons  for 
a  division  of  the  net  profits  arising  on  a  sale  of  cattle 
was  considered  as  a  method  adopted  by  the  one  for 
payment  to  the  other  of  the  price  of  their  pasturage. 
There  the  proprietor  of  cattle  agreed  with  a  grazier  that 
the  cattle  should  be  depastured  upon  his  land,  and  that, 
after  being  fattened,  the  latter  should,  as  a  remuneration, 
receive  one  half  of  what  the  cattle  sold  for  above  a  cer- 
tain sum,  which  was  their  estimated  value ;  and  it  was 
held  by  Mr.  Baron  Thomson,  that  this  was  merely  a 
mode  of  paying  for  the  pasture,  and  that  it  did  not  cre- 
ate a  partnership  between  the  parties.  And  Mr.  Justice 
Holroyd  has  held,  that  an  agreement  between  a 
broker  and  a  *third  person,  that  the  latter  should  [  *20  ] 
have  one  half  of  the  commission,  claimable  by 
the  former  for  brokerage,  on  effecting  policies  of  insu- 
rance, did  not  constitute  a  partnership,  but  was  a  mere 
subcontract,  (w;)  In  another  case  (^)  on  this  subject,  it 
was  determined  by  the  Court  of  Common  Pleas,  that  an 
agent  who  has  no  interest  in  the  capital,  but  who  is  paid 
by  a  proportion  of  the  profits  of  an  adventure,  has  not 
such  an  interest  in  the  good  themselves,  or  the  profits 
specifically,  as  to  render  him  liable,  jointly  with  the 
owners,  to  third  persons.  (1)  Such  are  the  cases  estab- 
lishing that  distinction,  the  existence  of  which  is  de- 

(v)  1  Campb.  331.,  in  note. 

(w)  Gibbons  v.  Wilcox,  2  Stark.  N.  P.  C.  45.     And  see  Muirhead 
V.  Sailer,  cited  4  B.  &  A.  667. 
(x)  Meyer  v.  Sharpe,  5  Taunt.  74. 


Rep.  335.  Chase  v.  Barret,  4  Paige's  Rep.  148.  See  the  cases  of  the 
seamen  employed  in  the  whale  fisheries,  and  of  the  shipments  to  India 
on  half  profits,  put  by  Putnam,  .1.  ibid.  p.  206,  and  Baxter  v.  Bod' 
man,  3  Pick.  Rep.  435.  See  also  Muzzy  v.  JVhilney,  10  Johns.  Rep 
228,  which  was  the  case  of  an  isolated  transaction.  See  also  1  McCord's 
Cha.  Rep.  219.  ffl.lkinson  v.  Frazier,  was  the  case  of  a  seamen  en- 
gaged for  a  whaling  voyage. 

(1)  See,  and  consider,  Jiice  v.  Austin,  17  Mass.  Rep.  197.  Cutler 
V.  Winsor,  6  Pick.  Rep.  335.  Bowyer  v.  Anderson,  2  Leigh's  Rep. 
550,  and  Thompson  v.  Snow,  4  Greenl.  Rep.  264.  See  the  remarks 
of  Gibson,  C.  J.  15  Serg.  &  Rawle,  139. 


20  OF  THE  CONTRACT 

plored  by  the  learned  and  noble  lord  to  whose  opinion 
we  have  already  adverted;  a  distinction  which  may 
justly  be  opened  to  the  observation,  of  not  having  been 
established  "  upon  due  consideration."  It  does  not  seem 
to  be  perfectly  in  unison  with  the  principle  upon  which 
every  person  having  an  actual  and  determined  interest 
in  the  profits  is  amenable  to  the  joint  creditors.  Such  a 
person,  as  we  have  seen,  superinduces  a  liability,  be- 
cause, by  abstracting  a  portion  of  the  profits,  he  is  de- 
priving the  creditors  of  a  part  of  the  fund,  which  they 
naturally  regard  as  that  out  of  which  their  demands  are 
to  be  discharged.  The  same  reason  might,  it  is  appre- 
hended, be  assigned  with  equal  force  in  the  case  of  a 
person,  the  wages  of  whose  labour  are  paid  by  a  sum 
proportioned  to  a  given  quantum  of  the  profits.  Nomi- 
nally, indeed,  there  is  a  discrepancy  betwee-n  the  two 
cases,  but  in  what  the  substantial  diflference  consists  it  is 
not  easy  to  determine.  The  distinction,  however,  has 
so  long  prevailed,  and  has  obtained  successively  the 
sanction  and  support  of  so  many  learned  and  enlighten- 
ed judges,  that  it  would  be  presumptuous  to  canvass  or 
question  its  propriety. 

A  retiring  partner,  who  receives  an  annuity  fairly 
proportioned  to  the  interest  he  possessed  in  the  profits 
and  the  good  will,  at  the  time  of  his  secession  from  the 
partnership,  is  absolved  from  continued  responsibility  to 
third  persons,(y)  provided  the  fact  of  his  retirement  is 
sufl[iciently  promulgated  to  the  w^orld.(z)  From  the  judg- 
ment of  Lord  Ch.  J.  Eyre  in  a  celebrated  case,(a) 
[  *21  ]  *it  seems  that  great  Judge,  at  one  time,  entertained 
a  doubt  upon  this  question ;  but  that  doubt  was,  ac- 
cording to  his  own  statement,  afterwards  completely  re- 
moved. His  lordship  is  reported  thus  to  have  expressed 
himself:  "  This  case  has  been  extremely  well  argued,  and 
the  discussion  of  it  has  enabled  me  to  make  up  my 
mind,  and  removed  the  only  diflficulty  I  felt;  which  was, 

(y)  Young  v.  Axtell,  cited  in  Waugh  v.  Carver,  2  H.  Bl.  242. 
(z)  Parkin  v.  Carruthers,  3  Esp.  N.  P.  C.  248.   Gorham  v.  Thomp- 
6on,  Peake's  N.  P.  C.  43.     Goode  v.  Harrison,  5  B.  &  A.  157. 
(a)  Waugli  V.  Carver,  supra. 


OF  PARTNERSHIP.  21 

whether,  by  construing  this  to  be   a  partnership,  we 
should  not  determine,  that  if  there  was  an  annuity  grant- 
ed out  of  a  banking  house  to  the  widow,  for  instance, 
of  a  deceased  partner,  it  would  make  her  liable  to  the 
debts  of  the  house,  and  involve  her  in  a  bankruptcy  ? 
But  I  think  this  case  will  not  lead  to  that  consequence." 
However,  notwithstanding  a  fair  equivalent  annual  pay- 
ment, in  lieu  of  the  interest  actually  existing  in  a  part- 
ner at  the  time  of  his  withdrawing  himself  from  the 
firm,  will  not  render  him  liable  to  demands  against  the 
partnership,  on  the  ground  of  the  benefit  he  derives; 
yet  if  he  still  continue   to   participate   in   the  profits, 
the   mere    circumstance   of  his  having   withdrawn  his 
name  will  not  protect  him  from  responsibility.     Such  a 
person,   although  virtually  and  apparently  he  has  re- 
nounced the  partnership,  continues  to  possess  an  actual 
and  beneficial  interest  in  it  and  its  profits,  in  the  char- 
acter of  dormant  partner,  and  consequently  cannot  avail 
himself  of  his  nominal  retirement,  as  affording  him  an 
exemption  from  continued  liability. (/>)    And  to  discharge 
him  in  the  capacity  of  annuitant  simply,  the  profits  of 
the  trade  must  only  be  relied  upon,  as  a  fund  for  pay- 
ment of  the  annuity,(c)  which,  to  have  the  effect  of  ex- 
oneration, must  be  certain  and  defined.     If  it  be  casual, 
indefinite,  and  depending  on  the  accidents  of  trade,  the 
original  liability  is  not  extinguished,  because  there  is 
not  a  complete  extinction  of  interest  in  the  profits.(J) 
Therefore,(c)  where  a  partnership  for  seven  years  was 
terminated  at  the  end  of  one  year,  and  the  partner  con- 
tinuing in  the  business  gave  to  the  retiring  partner  a 
bond  for  the  capital  which  the  latter  brought  into  the 
trade  with  legal   interest,  and  agreed  to  give  him  an 
annuity  of  two  hundred  pounds  for  six  years,  if  the 
remaining  partner  so  long  lived,  as  and  in  lieu  of  his 

(6)  Grace  v.  Smith,  2  Blacks,  998.  Leveck  v.  Shaftoe,  2  Esp.  N. 
P.  C.  468. 

(c)  Per  J)e  Grey  C.  J.,  Grace  v.  Smith,  supra. 

{d)  Per  Blackstone  J.,  Id.  ibid.  Young  v.  Axtell,  cited  2  H.  Bl. 
242. 

(e)  Bloxham  v.  Pell,  cited  in  Grace  v.  Smith,  supra. 


22  OF    THE    CONTRACT 

share  of  the  profits,  and  the  retiring  partner  was 
[  *22  ]  to  have  at  *all  times  an  undisturbed  right  of  in- 
specting the  books ;  it  w-as  held  by  Lord  Mans- 
field that  this  continued  his  connection  as  a  partner; 
the  annuity  being  casual,  as  depending  on  the  life  of  the 
grantor,  and  the  liberty  to  inspect  the  books,  which  was 
reserved  to  the  seceding  partner,  being  in  fact  the  right 
of  a  partner,  and  evincing  that  he  was  not  wholly  unin- 
terested in  .  the  profits.  And  where  a  retiring  partner 
assigned  all  his  interest  in  the  concern  to  two  of  the 
continuing  partners,  upon  trust  to  pay  him  an  annuity 
for  his  life,  subject  to  abatement  or  enlargement  with 
the  fluctuation  of  the  profits  of  the  trade.  Lord  Eldon 
held  that  the  partnership,  with  reference  to  creditors, 
was  not  determined.(/)  Even  a  reservation  by  a  re- 
tiring partner  of  a  contingent  interest  in  the  concern 
will,  it  seems,  prevent  the  effectual  determination  of  the 
partnership,  quoad  third  persons.  Thus,  where  a  father, 
on  retiring  from  business,  assigned  all  his  share  in  the 
concern  to  his  co-partners  upon  trust  for  his  infant  chil- 
dren, in  such  shares  as  he  should  appoint,  and  in  default 
of  appointment  upon  trust  for  the  children,  to  be  di- 
vided amongst  them  when  the  youngest  should  attain 
the  age  of  majority,  it  was  held  that  the  contingent  in- 
terest the  father  had  in  the  share  so  assigned,  depending 
upon  the  death  of  any  of  the  children  under  age,  was 
such  an  interest  reserved  by  him  in  the  concern,  as,  with 
respect  to  creditors,  prevented  the  determination  of  the 
partnership.(  g)  The  original  responsibility  would  hke- 
wise  exist  where  the  retiring  partner  is  not  only  to  re- 
cieve  an  annuity,  but  likewise  a  per-centage  upon  all 
sales  to  old  customers,  and  to  new  customers  by  him 
recommended.(A)  But  where  a  partner  declining  busi- 
siness  allows  his  capital  to  remain  in  the  hands  of  his 
co-partner  at  legal  interest,  and  he  is  to  receive  in  addi- 
tion a  stipulated  annuity  for  a  stated  term  of  years,  it 
does  not  operate  as  a  continuance  of  the  partnership. 

(/)  In  re  Colbeck,  Buck.  48.  {g)  Id.  ibid. 

(//)  Young  V.  Axtell,  supra. 


OF  PARTNERSHIP. 


22 


This  question  was  agitated  in  a  leading  case  on  this 
subject,(0  in  which  the  jury  found  that  a  loan,  upon  such 
terms,  did  not  create  a  secret  constructive  partnership ; 
and  the  Court,  on  application  being  made  to  it  for  the 
purpose,  refused  to  disturb  the  verdict. 

Having  seen  in  what  cases  a  dormant  partner  con- 
tracts, and  an  outgoing  partner  continues  his  responsibi- 
lity to  third  persons,  we  will  now  consider  what 
renders  a  party  answerable  to  creditors  *in  the  [  23*  ] 
capacity  of  a  nominal  partner.     In  the  instances 
which  have  already  been   reviewed,  the   responsibility 
incurred  by  the  parties  is  either  wholly,  or  partially, 
counterbalanced,  when  it  is  enforced,  by  the  right  of 
participation   in  the  profit.     However,  to   fix  upon  a 
person  the  character  of  partner,  and  to  burden  him  with 
its  consequences,  it  is  not  necessarily  essential  that  he 
should  derive  any  profit  or  advantage  from  the  concern; 
if  he  have  an  apparent  interest  it  is  sufficient,  although 
he  does  not  reap  any  actual  benefit.     A  man  may  con- 
tract the  liability  of,  and  be  sued  as,  a  partner,  who 
never  was  in  reality  a  partner.(A:)     For  instance,  a  per- 
son who  is  not  interested  in  the  capital  embarked  in  the 
trade,  or  in  its  profits  may  be  responsible  as  a  partner, 
if,  by  lending  his  name,  he  hold  himself  out  to  the  world 
as  being  a  partner.(/)     So,  a  person  who  retires  from  a 
house  of  trade,  and  suffers  his  name  to  continue  in  the 
firm  after  he  has  ceased  to  be  an  actual  partner,  is  lia- 
ble to  the  world  as  a  partner,  although  the  property  be- 
longs entirely  to  other  persons.(m)     And  the  manager 
or  servant  of  a  partnership  concern,  w  ho  acts  as  one  of 
the  partners  in  the  partnership,  stands  in  the  relation  of 
a  partner  with  respect  to  third  persons.(?i)     It  is  the 
permitted  use  of  the  name  which  makes  such  a  person 

(?)  Grace  v.  Smith,  2  Blacks.  998. 

{k)  Per  Abbott  C.  J.,  Goode  v.  Harrison,  5  B.  &  A.  156.  Bourne 
V.  Freeth,  9  B.  &  C.  639. 

(/)  Per  Lord  Eldon,  Ex  parte  Langdale,  18  Ves.  301.  Young  v. 
Axtell,  cited  2  H.  Bl.  242.  Guidon  v.  Robson,  2  Camp.  302.  Par- 
sons V.  Crosby,  5  Esp.  N.  P.  C.  199.  Mclver  v.  Humble  16  East, 
174. 

(m)  Per  Best  J.,  Smith  v.  Watson,  2  B.  &  C.  411. 

(n)  Geddes  v.  Wallace,  2  Bligh,  270. 


23 


OF  THE  CONTKACT 


liable,  as  one  of  those  by  and  to  whom  every  thing  is 
bought  and  sold.(o)  (1)  The  principle  upon  which  persons 
suffering  their  names  to  be  used  as  partners  subject  them- 
selves to  responsibility  has  been  ably  stated  by  Lord  Ch. 
J.  Eyre,  in  his  judgment  on  a  case  which  we  have  already 
had  frequently  occasion  to  notice.(j9)  "  Now  a  case," 
said  that  learned  Judge,  "  may  be  stated,  in  which  it  is 
the  clear  sense  of  the  parties  to  the  contract,  that  they 
shall  not  be  partners ;  that  A.  is  to  contribute  neither 
labour  nor  money,  and,  to  go  still  farther,  not  to  receive 
any  profits.  But,  if  he  will  lend  his  name  as  a  partner, 
he  becomes,  as  against  all  the  rest  of  the  world,  a 
partner,  not  upon  the  grounds  of  the  real  transaction 

between  them,  but  upon  principles  of  general 
[  ^24  ]  *policy,  to  prevent  the  frauds  to  which  creditors 

would  be  liable,  if  they  were  to  suppose  they  lent 
their  money  upon  the  apparent  credit  of  three  or  four 
persons,  when  in  fact  they  lent  it  only  to  two  of  them, 
to  whom,  without  the  others,  they  would  have  lent  no- 
thing." The  liability  of  nominal  partners  results  solely 
from  their  holding  themselves  out  as  partners,  or  suffer- 
ing their  names  to  be  used  as  members  of  the  firm ;  and 
as  they  thereby  give  a  false  appearance  of  substance  to 
the  concern,  it  is  but  equitable  that  they  should  make  it 
good.  Therefore,  where  parties  are  not  in  point  of  fact 
partners  in  trade,  yet  if  one  so  represents  himself,  and 
by  that  means  gets  credit  for  goods  for  the  other,  both 
are  to  be  considered  and  treated  as  partners.((7)  And 
to  create  responsibility  as  a  nominal  partner,  the  allow- 
ed use  of  the  name  on  bills  of  parcels  used  by  the  firm 
seems  to  be  sufficient,(r)  (2)  notwithstanding  that  the 
creditor  was  originally  ignorant  of  the  introduction  of 
the  name.(s)    In  a  late  case,(/)  in  which  one  person,  for 

(0)  Ex  parte  AVatson,  19  Ves.  461. 
(p)  Waiigh  V.  Carver,  2  H.  Bl.  235. 

Iq)  Per  Lord  Kenyan,  De  Berkom  v.  Smith,  1  Esp.  N.  P.  C.  29. 
(r)  Young  v.  Axtell,  supra.  (s)  Id.  ibid. 

[t)  Ex  parte  Matthews,  3  Ves.  &  Bea.  125. 

(1)  Osborne  v.  Brennan,  2  Nott  &  McCord's  Rep.  427.     Dolman 
V.  Orchard,  2  Carr.  &  Payne,  104. 

(2)  See  what  is  said,  6  Serg.  Rawle,  338. 


OF  PARTNERSHIP.  24 

the  purpose  of  counteracting  a  report  that  a  partnership 
existed  between  him  and  another,  caused  an  advertise- 
ment to  be  inserted  in  the  Gazette,  notifying  a  dissolu- 
tion, Lord  Eldon  refused  to  decide  the  question  of  part- 
nership, but  directed  an  issue  to  try  it.     However,  to 
render  a  person  responsible  as  a  nominal  partner,  posi- 
tive consent  or  at  least  a  knowledge  by  him  of  the  as- 
sumption of  his  name,  from  which  his  acquiescence  will 
be  inferred,  must  be  shown.(w)    Without  actual  concur- 
rence or  passive  privity,  which  conclusively  affords  a 
presumption  of  acquiescence,  he  does  not  become  a 
partner  in  the  fraud  practised  upon  the  creditors  by  the 
improper  use  of  his  name,  and  he  cannot  therefore  be 
made  to  suffer  for  the  acts  of  others  of  which  he  is  not 
conscious,  and  the  which  he  is   not   privy.     On   this 
principle  it  has  been  held,(v)  that  the  unauthorized  use 
of  the  name  of  a  seceding  partner,  after  ample  notice 
has  been  given  of  his  having  withdrawn  from  the  part- 
nership, does  not  induce  an  obligation  upon  him 
to   fulfil  contracts  *improperly  entered   into  by  [  *25  ] 
the  old  firm  in  his  name,  jointly  with  their  own, 
because  it  is   not  essential  to  his   protection   that   he 
should  apply  to  a  court  of  equity  for  an  injunction   to 
restrain  the  remaining  partners  from  using  the  style  of 
the  old  firm.     And  it  has  been  decided  that  a  man  can- 
not be  liable  as  a  partner,  where  there  has  not  either 
been  a  contract  between  him  and  the  ostensible  person 
to  share  jointly  in  the  profits  and  loss,  nor  has  he  per- 
mitted the  other  to  make  use  of  liis  credit,  and  to  hold 
him  out  as  one  jointly  liable.(z^)     It  remains  to  be  ob- 
served, that  persons,  who  appear  to  the  w  orld  as  part- 

(u)  Guidon  v.  Robson,  Campb,  302. 

\v)  Newsome  v.  Coles,  2  Campb.  G17.  But  where  tlic  retiriuir 
partner  suffered  his  name  to  remain  over  the  door,  he  was  held  liable 
to  a  bona  fide  holder  of  a  bill  of  exchange  drawn  after  the  dissolution. 
Williams  v.  Keats,  2  Stark.  N.  P.  C.  290.(1)  And  where  a  retiring 
partner,  in  the  business  of  carriers,  permitted  his  name  to  remain  on 
the  cart,  and  over  the  house  of  business,  he  was  held  responsible  for 
the  negligence  of  the  driver.     Stables  v.  Eley,  1  C.  &  P.  61 1. 

{w)  Hoare  w.  Dawes,  Dougl.  371. 

(1)  Dolman  v.  Orchard,  2  Carr.  &  Payne,  104. 
5 


25  OF  THE  CONTRACT 

ners,  may  not  only  lawfully  stipulate  among  themselves 
that  some  of  them  shall  not  participate  in  the  profit 
and  loss,  and  therefore  shall  not  contract  the  liability 
of  partners,  but  it  seems  that  those,  who  are  excluded 
from  participation,  will  not  be  responsible,  in  the  charac- 
ter of  partners,  to  such  claimants  upon  the  firm  as  are 
apprised  of  the  stipulation.(^)(l) 

Where  a  contract  is  entered  into  by  parties,  which, 
in  its  nature  and  conditions,  is  immoral,  or  in  violation 
of  the  general  laws  of  public  policy,  such  as  being  af- 
fected by  usury,  it  does  not  amount  to  a  partnership 
contract  within  the  legal  principles  established  respect- 
ing joint  traders,  and  the  parties  themselves  are  not 
legally  bound  by  it.  For  instance,  an  agreement  pur- 
porting to  be,  or  assuming  the  shape  of  a  partnership  in 
trade,  contracted  for  a  single  dealing,  according  to  which 
one  of  the  partners  advanced  a  sum  of  money  for  the 
purchase  of  particular  goods,  stipulating  at  the  same 
time  to  have  one  half  of  the  profits  upon  a  resale  of 
such  goods,  which  profits  exceeded  five  per  cent.,  and 
the  principal  sum  lent  was  not  risked,  was  held  to  be 
unconscionable,  and  consequently  not  binding.(?/)  So, 
if  the  borrower  of  money  give  a  bond  for  the  principal 
and  interest  at  five  per  cent.,  and  at  the  same  time,  co- 
venant to  pay  to  the  lender  a  certain  portion  of  the  pro- 
fits of  a  trade  carried  on  by  him  in  partnership  with 
others,  this  is  a  usurious  contract,  and  the  obligee  can- 
not recover  upon  the  bond ;  for,  in  such  an  agreement, 
provision  being  made  to  receive  the  profits  only,  and  not 
to  engage  for  the  losses  of  a  trade,  it  is  contrary  to  the 
principle  upon  which  the  partnership  contract  must  be 
founded,  namely,  reciprocal  risks,  and  advantages,  and 

must,  consequently,  it  has  been  said,  be  deemed 
[  *26  ]  a  contract  not  *having  operation  between  the 

parties.(2^)     If,  however,  a  bona  fide  partnership 

(ar)  Alderson  v.  Pope,  1  Campb.  408. 
(y)  Jestons  v.  Brooke,  Cowp,  793. 

(z)  Morse  v.  Wilson,  4  T.  R.  353.     In  this  case  it  was  insisted  for 
the  plaintiff,  that  although  as  between  him  and  the  partners  he  was 

(1)  Batty  et  at.  v.  McCandie  et  al.  3  Carr.  &  Payne,  202.    Ensign 
V.  Wands,  1  Johns.  Ca.  171. 


OP  PARTNERSHIP.  26 

is  entered  into,  an  advance  of  money,  on  whatever 
terms,  in  order  to  carry  on  the  business,  cannot  be  con- 
sidered as  a  loan ;  and  if  there  be  not  a  loan  the  con- 
tract is  not  affected  by  usmy.  Therefore,  where  A  and 
B  by  deed  covenanted  to  become  partners  as  army 
clothiers,  for  ten*  years,  and  that  A  should  advance 
20,000/.  as  part  of  the  capital  for  carrying  on  the  busi- 
ness, and  that  B  should  find  a  like  sum ;  that  A  during 
the  continuance  of  the  partnership,  should  have  out  of 
the  profits,  if  sufficient,  or,  if  not,  out  of  the  capital, 

not  under  any  liability,  yet  to  all  the  rest  of  the  world  he  was,  by 
the  general  rules  of  law,  responsible  for  the  partnership  engagements, 
and  as  the  principal  of  his  debt  was  thereby  put  in  hazard,  the  con- 
tract was  not  usurious.  But  Lord  Kenyon  and  Mr.  J.  Buller  were 
of  opinion  that,  as  the  plaintiff  could  only  be  liable  to  the  joint  credi- 
tors in  the  event  of  the  insolvency  of  the  partners,  the  principal  was 
no  farther  hazarded  than  in  the  case  of  every  other  loan,  the  repayment 
of  which  must  depend  upon  the  solvency  of  the  borrower.  However,  in 
the  late  case  of  Fereday  v.  Hordern,  1  Jacob,  144,  Lord  Eldon  de- 
termined that  where  the  lender  of  money  assumes,  in  respect  of  the 
loan,  the  character  of  a  partner  to  third  persons,  the  security  given  for 
the  loan  is  not  invalidated  on  the  ground  of  usury,  although  the  benefit 
reserved  exceed  the  legal  rate  of  interest,  and  the  lender  expressly 
stipulates  for  an  indemnity  against  losses.  There  A,  B,  and  C,  part- 
ners in  trade,  in  consideration  of  4000/.  paid  them  by  D  in  augmen- 
tation of  their  capital,  agreed  by  deed  to  admit  him  into  partnership 
with  them  for  a  term.  It  was  covenanted  that  D  should  receive,  in  lieu 
of  profits,  a  clear  sum  of  550/.  per  annum,  and  all  the  property  of  the 
concern  was  charged  with  the  payment  of  this  sum  quarterly,  and  of 
the  4000/.  at  the  determination  of  the  partnership.  A,  B,  and  C,  were 
to  pay  rent,  taxes,  wages,  and  the  other  outgoings  of  the  trade,  which 
was  to  be  carried  on  by  them,  and  in  their  names  only,  and  D  was  not 
to  be  required  to  attend  to  it.  D  was  at  liberty  to  retire  on  giving 
twelve  months'  notice ;  on  his  retiring,  or  at  the  end  of  the  term,  the 
4000/.,  and  the  arrears  (if  any)  of  the  550/.  per  annum,  were  to  be 
paid  to  him  by  A,  B,  and  C,  by  instalments  to  be  secured  by  their 
bonds,  and  they  were  to  indemnify  him  from  the  debts  of  the  partner- 
ship. On  a  bill  being  filed,  praying  that  the  deed  niiglit  be  delivered 
up  to  be  cancelled  on  the  ground  of  its  being  usurious,  tlie  Lord  Chan- 
cellor observed,  that  though  D  was  not  under  any  liability  as  between 
himself  and  A,  B,  and  C,  yet  as  he  was  lial>le  for  the  debts  of  the  con- 
cern to  all  the  rest  of  the  world,  it  was  impossible  to  make  out  that  the 
deed  was  usurious.  It  appears  to  be  difllcult  to  reconcile  this  latter  de- 
cision with  that  of  Morse  v.  Wilson.  See  also  Anderson  v.  Maltby, 
2  Ves.  jun.  248.  S.  C.  4  Bro.  C.  C.  423.  In  Enderby  v.  Gilpin, 
5  B.  Moore,  571,  Park  J.,  in  adverting  to  the  case  of  More  v.  Wilson, 
seems  to  have  thought  that  a  person  could  not  be  a  partner  to  strangers, 
and  a  lender  to  the  firm. 


26 


OP  THE  CONTRACT 


2000/.  yearly  for  his  share  of  the  profits.  B  then  cove- 
nanted that,  on  the  determination  of  the  partnership  by 
effusion  of  time,  the  sum  of  20,000/.  should  be  repaid  to 
A,  and  that  B  should  guarantee  all  debts  and 
[  *21  ]  pay  all  losses.  In  an  action  brought  upon  *the 
deed  to  recover  the  20,000/.  at  the  expiration  of 
the  ten  years,  B  pleaded  that  the  deed  was  executed  by 
way  of  shift,  in  pursuance  of  an  usurious  agreement ; 
but  that  plea,  upon  issue  joined,  being  negatived  by  the 
verdict  of  a  jury,  the  Court  of  Common  Pleas,  and  af- 
ter^vards  the  Court  of  King's  Bench,  on  error,  held,  that, 
after  that  finding,  the  deed  must  be  taken  to  disclose 
the  real  intention  of  the  parties,  and  that  it  was  not, 
therefore,  void  upon  the  ground  of  usury.(a)  And  if 
the  lender  agree  to  share  the  losses  of  the  concern,  a 
loan  for  more  than  five  per  cent,  has  been  held  not  to 
be  usurious,  on  the  ground  that  a  partnership  is  estab- 
lished between  the  parties.(Z>) 

Although  the  general  right  which  any  number  of  in- 
dividuals possess,  of  associating  themselves  together  for 
the  purpose  of  carrying  on  any  lawful  trade  or  busi- 
ness, is  unquestionable,  yet  restraints  have,  in  various 
instances,  been  imposed  by  the  legislature  upon  such  a 
right.  In  the  business  of  bankers,  for  the  purpose  of 
securing  to  the  Bank  of  England  exclusively  the  privi- 
lege of  banking,  it  has  been  declared  by  the 
[  *28  ]  Ba7ik  acts(c)  *to  be  unlawful  for  any  body  cor- 
porate, or  for  any  other  persons  in  covenants 

(a)  Enderby  v.  Gilpin,  5  B.  Moore,  571.  S.  C.  5  Barn.  &  Aid.  954. 

(6)  Morrissel  v.  King,  2  Burr.  981. 

(c)  6  Ann.  c.  22,  s.  9.  7  Ann.  c.  7,  s.  61.  3  Geo.  1,  c.  8,  s.  44.  15 
Geo.  2,  c.  13,  s.  5.  21  Geo.  3,  c.  60,  s.  12.  39  &  40  Geo.  3,  c.  28. 
By  the  7  Geo.  4,  c.  46,  it  is  enacted,  that  it  shall  and  may  be  lawful 
for  any  bodies  politic  or  corporate  erected  for  the  purposes  of  banking, 
or  for  any  number  of  persons  united  in  covenants  or  co-partnership, 
although  such  persons  so  united  are  carrying  on  business  together  shall 
consist  of  more  than  six  in  number,  to  carry  on  the  trade  or  business  of 
bankers  in  England,  in  like  manner  as  co-partnerships  of  bankers  con- 
sisting of  not  more  than  six  persons  in  number  may  lawfully  do  ;  and 
for  such  bodies  politic  or  corporate,  or  such  persons  so  united  as  afore- 
said, to  make  and  issue  iheir  bills  or  notes  at  any  place  or  places  in 
England  exceeding  the  distance  of  sixty-five  miles  from  London,  pay- 
able on  demand,  or  otherwise,  at  some  place  or  places  specified  upon 


OP  PARTNERRHIP.  28 

or  partnerships  in  England,  consisting  of  more  than  six 
persons,  except  the  Bank  of  England,  to  borrow,  owe, 
or  take  up  any  sum  of  money  on  their  bills  or  notes 
payable  on  demand,  or  at  any  less  time  than  six  months 
from  the  time  of  borrowing.  In  a  recent  case,  where  a 
partner  in  a  banking  house  in  Scotland,  consisting  of 
more  than  six  persons,  opened  an  office  in  England  as 
agent  of  the  Scotch  house,  and  issued  their  notes  pay- 
able on  demand,  it  \^'as  held  to  be  a  clear  violation  of 
the  Bank  acts.(^) (I)  And  in  expounding  these  statutes, 
it  has  been  ruled,  that  a  promissory  note,  issued  by  a 
commercial  company  consisting  of  more  than  six  per- 
sons, who  are  not  bankers,  is  not  within  the  prohibi- 
tion.(e)     But  a  corporation,  not  established  for  trading 

such  bills  or  notes,  exceeding  the  distance  of  sixty-five  miles  from 
London,  and  not  elsewhere,  and  to  borrow,  owe,  or  take  up  any  sum 
or  sums  of  money  on  their  bills  or  notes  so  made  and  issued  at  any  such 
place  or  places  as  aforesaid  :  provided,  that  such  corporations,  or  persons 
carryinir  on  such  trade  or  business  of  bankers  in  co-partnership,  shall 
not  have  any  house  of  business  or  establishment  as  bankers  in  Lon- 
don, or  at  any  place  or  places  not  exceeding  the  distance  of  sixty-five 
miles  from  London;  and  that  every  member  of  any  such  corporation 
or  co-partnership  shall  be  liable  to  and  responsible  for  the  due  payment 
of  all  bills  and  notes  which  shall  be  issued,  and  for  all  sums  of  money 
which  shall  be  borrowed,  owed,  or  taken  up  by  the  corporation  or  co- 
partnership of  which  such  person  shall  be  a  member,  such  person  be- 
ing a  member  at  the  period  of  the  date  of  the  bills  or  notes,  or  becoming 
or'being  a  member  before  or  at  the  time  of  the  bills  or  notes  being  pay- 
able, or  being  such  member  at  the  time  of  the  borrowing,  owing,  or 
taking  up  of  any  sum  or  sums  of  money  upon  any  bills  or  notes  by  the 
corporation  or  co-partnership,  or  while  any  sum  of  money  on  any  bills 
or  notes  is  owing  or  unpaid,  or  at  the  time  the  same  became  due  from 
the  corporation  or  co-partnership ;  any  agreement,  covenant,  or  con- 
tract to  the  contrrry  notwithstanding.  The  20th  section  provides,  that 
nothing  in  the  act  contained  shall  extend  or  be  construed  to  extend  to 
prejudice,  alter,  or  affect  any  of  the  rights,  powers,  or  privileges  of  the 
Governor  and  Company  of  the  Bank  of  England,  except  as  the  exclu- 
sive privilege  of  the  said  Governor  and  Company  is  by  the  act  specially 
altered  and  varied, 

(d)  Ex  parte  Randleson,  1  Mont.  &  M.  86. 

(e)  Wigan  v.  Fowler,  1  Stark.  N.  P.  C.  459.(2) 


(1)  See  the  Act  of  22d  March,  1817,  {Pennsylvania,)  against  un- 
incorporated banks  and  individuals  issuing  notes  in  "  the  nature  of  Bank 
notes."     6  Sm.  Laws,  441,  Purd.  Dig.  96,  Edit,  1831. 

(2)  S.  C.  1  Chit.  Rep.  128.  The  King's  Bench  refused  to  set 
aside  the  verdict,  and  enter  a  nonsuit. 


28 


OP  THE  CONTRACT 


purposes,  cannot  become  acceptors  of  a  bill  of  exchange 
payable  at  a  less  period  than  six  months  from  its  date, 
such  a  case  being  a  direct  infringement  on  the  rights 
of  the  Bank  of  England;(f)  unless,  indeed,  the  act 
of  Parliament  by  which  the  corporation  is  created,  ex- 
pressly authorises  and  empowers  it  to  become  a  party 
to  negotiable  securities.(^)  And  even  in  the  latter  case, 
if  the  corporation  is  empowered  to  raise  money  by 
notes  for  a  special  purpose  only,  yet  if  it  issue  notes  at 
less  than  six  months'  date,  without  stating  therein  that 
they  were  given  for  that  purpose,  the  corporation  may 
resist  payment,  on  the  ground  that  they  were  given 
for  another  purpose ;  and  this  will  be  a  defence  even 

against  an  innocent  indorsee.(/i)  And  with  the 
[  *29  ]  view   of    suppressing  ^societies    amongst   coal 

buyers,  and  thereby  of  keeping  the  coal  trade 
open  and  free,  a  partnership  composed  of  more  than 
five  persons  for  the  purchasing  of  coals  for  sale,  or  for 
making  regulations  with  respect  to  the  manner  of 
carrying  on  the  trade,  is,  by  a  legislative  provision,(i) 
rendered  illegal,  and  is  to  be  deemed  an  unlawful 
combination  to  advance  the  price  of  that  article,  for 
which  the  parties  concerned  are  punishable  by  indict- 
ment on  information.  And  formerly,  in  the  case  of 
marine  insurances,  the  right  of  jointly  assuring  any  ship 
or  goods  at  or  going  to  sea  was  prohibited,(i^)  (except 
in  the  instances  of  the  Royal  Exchange  and  London  As- 

(/)  Broughton  v.  Proprietors  of  Manchester  and  Salford  Water 
Works,  3  Barn.  &  Aid.  1.  In  Magor  v.  Hammond,  which  was  a  spe- 
cial verdict  argued  before  the  twelve  Judges,  it  is  stated  by  Bayley,J., 
to  have  been  decided,  that  the  several  acts  made  for  the  protection  of 
the  Bank  of  England,  did  not  prevent  more  than  six  persons  from 
paying  their  debts  by  their  acceptance,  but  merely  prevented  more  than 
that  number  carrying  on  a  banking  concern,  9  Barn.  &l  Cres.  .363. 

(g-)  Slark  V.  Highgate  Archway  Company,  5  Taunt.  792.  Murray 
V.  East  India  Company,  5  Barn.  &  Aid.  204. 

(A)  Slark  V.  Highgate  Archway  Company,  supra. 

(i)  28  G.  3,  c.  53,  s.  2. 

[k)  6  G.  1,  c.  18,  s.  12.  The  cases  which  arose  upon  this  branch 
of  the  statute  are,  Lees  v.  Smith,  7  T.  R.  338.  Harrison  v.  Millar, 
Ibid.  340,  n.  S.  C.  1  Esp.  N.  P.  C.  513.  Reed  v.  Cole,  3  Burr.  1512. 
Branton  v.  Taddy,  1  Taunt.  6.  Cockburn  v.  Thompson,  16  Ves.  328. 
Dowell  V.  Moon,  4  Campb.  166. 


OP  PARTNERSHIP.  29 

surance  Companies^  upon  whom,  in  consideration  of  a 
compensation  made  by  them  to  the  pubhc,  an  exclusive 
monoply  in  this  respect  was  conferred,)  and  the  policies 
of  assurance  effected  by  underwriters  having  a  joint 
interest,  were  not  only  declared  to  be  ijoso  facto  void, 
but   every    sum   underwritten   was   forfeited   in   equal 
moieties,  one  to  the  king,  the  other  to  the  informer.  So, 
in  favour  of  the  same  Insurance  Companies,  a  joint 
loan  of  money  upon  bottomry  by  any  other  than  those 
Companies,  or  by  any  society  or  partnership,  was  inter- 
dicted, and  the  security  given  upon  such  a  loan  was 
declared  to  be  ipso  facto  void,  and  the  lenders  were  sub- 
jected to  the  same  penalties  as  are  inflicted  in  cases 
of  usury .(/)     But  these  prohibitions  are  now  relaxed ; 
the  legislature,  to  destroy  the  monopoly  thereby  created, 
and  to  allow  assurances  to  be  effected  on  the  principle 
of  a  free  trade,  having  enacted  that  so  much  of  the 
prohibitory  statute  as  restrained  any  corporation,  so- 
ciety, or  partnership,  from  granting,  signing,  and  under- 
writing any  policy  of  assurance,  or  making  any  con- 
tract for  assurance,  of  or  upon  any  ship  or  goods  at 
sea,  or  going  to  sea,  or  from  lending  money  by  way 
of  bottomry,  or  as  made  any  such  contract  void,  or 
declared  that  the  same  should  be  adjudged  usurious, 
or  as  imposed  any  forfeiture  or  penalty  in  respect  of 
any  such    policy  or    contract,    should    be    re- 
pealed.(m)     Besides,  in  *the  instances  we  have  [  *30  ] 
enumerated,  the  legislature,  in  the  year  1720,  in  conse- 
quence of  the  multiplicity  of  wild  schemes  which  were 
then  formed,  found  it  necessary  to  interfere  to  secure 
the  public  against  the  ruinous  consequences  of  projects, 
where  great  hopes  are  held  out  on  false  foundations ; 
and  an  act  of  Parliament  was  passed,(7i)  which  had  for 
its  object  the  preventing  combinations  of  speculating 
individuals,  who,  without  the  authority  of  an  act  of  Par- 

(Z)  See  6  G.  1,  c.  18,  s.  12 ;  and  Everth  v.  Blackburne,  2  Stark.  N. 
P.  C.  66.  S.  C.  6  Mau.  &  Selw.  152. 

(w)  See  5  G.  4,  c.  114,  s.  1. 

(n)  6  G.  1,  c.  18,  s.  18.  The  difFerent  projects  to  which  the  atten- 
tion of  the  legislature  was  called  at  the  time  this  act  of  Parliament  was 
passed,  are  detailed  in  the  19th  vol.  of  the  Commons'  Journals,  p.  .341. 


30  THE  INTEREST  OF  PARTNERS 

liament,  or  the  king's  charter  of  incorporation,  and  by 
means  of  delusive  schemes,  might  engross  the  public 
attention,  and  entail  upon  the  unwary  all  the  mischief 
which  gaming  and  rash  speculation  are  calculated  to 
produce.  In  this  respect,  however,  the  law  is  now 
altered,  the  legislature  having,  on  principles  of  policy, 
repealed  so  much  of  the  act  alluded  to  as  related  to  the 
undertakings,  attempts,  and  practices  thereby  denounced, 
judging  it  more  expedient  to  leave  such  matters  to  the 
cognizance  of  the  common  law.(o) 


CHAPTER    II. 

SECTION  1. 
The  Interest  of  Partners  in  Stock  in  Trade. 

Having  considered  the  nature  of  a  partnership,  the 
various  ways  by  which  the  relation  of  partners  may  be 
contracted,  and  in  what  instances  it  is  prohibited,  we 
will  now  proceed  to  inquire  what  interest  partners  have, 
by  law,  in  the  goods  or  capital  they  contribute  at  the 
outset,  or  acquire  in  the  course  of  trade. 

Partners  are,  at  law,  joint  tenants  of  their  merchan- 
dise; not  only  of  that  particular  part  which  was  brought 
into  the  partnership  at  the  time  of  its  formation,  but 
they  continue  so  throughout  their  co-partnership  deal- 
ings, whatever  changes  or  additions  may  be  made  to  it 

(o)  See  6  G.  4,  c.  91,  The  reader  is  referred  to  the  following  list 
of  cases  as  elucidatory  of  the  construction  put  upon  the  statute : — Rex 
V.  Cawood,  2  Ld.  Raym.  1361.  S.  C.  1  Stra.  472.  Rex  v.  Dodd,  9 
East,  516.  Buck  v.  Buck,  1  Campb.  547.  Stent  v.  Bailis,  2  P.  Wras. 
217.  Rex  V.  Stratton,  1  Camp.  549,  n.  Rex  v.  Webb,  14  East,  406. 
Pratt  u.  Hutchinson,  15  East,  515.  Ellison?;.  Bignold,  2  Jac.  &  Walk. 
503.  Davis  v.  Fisk,  in  Appendix  to  Farren's  Treatise  on  Life  Ass.  p. 
128.  Brown  v.  Holt,  4  Taunt.  587.  Child  v.  Hudson's  Bay  Com- 
pany, 2  P.  Wms.  207.     Josephs  v.  Pebrer,  3  B.  &  C.  639. 


IN  RKAL  PROPERTY.  31 

in  the  course  of  trade.(a)  The  joint  tenancy,  created 
by  the  contract  of  partnership,  differs,  however,  in  one 
of  its  chief  characteristics,  from  an  ordinary  joint  ten- 
ancy, because  as  between  partners  there  is  no  jus  accres- 
cendi,  or  right  of  survivorship,  a  quahty  which,  being 
appended  to  a  possession  per  my  ct  per  tout,  at  common 
law,  always  accompanies  a  joint  tenancy.  The  absence 
of  this  distinguishing  feature  of  a  joint  tenancy  is  no- 
ticed by  Lord  Coke,  in  commenting  upon  a  passage  of 
Littleton,  in  which  it  is  laid  down,  that  the  right  of  sur- 
vivorship exists  between  joint  tenants.  That  able  com- 
mentator says,(6)  "  an  exception  is  to  be  made  of  two 
joint  merchants ;  for  the  wares,  merchandises,  debts  or 
duties  that  they  have,  as  joint  merchants  or  partners, 
shall  not  survive,  but  shall  go  to  the  executors  of  him 
that  deceaseth  ;  and  this  is  per  legem  mercatoriam,  which 
is  part  of  the  laws  of  this  realm,  for  the  advancement 
and  continuance  of  commerce  and  trade,  which  is  pro 
bono  publico;  for  the  rule  is,  that  jus  accrescendi  inter 
mercatores  pro  benejicio  commercii  locum  nan  habety  Even 
where  two  persons,  by  testamentary  disposition,  take,  as 
joint  tenants,  leasehold  and  personal  estate  *em- 
barked  in  trade,  and  there  is  no  express  severance  [  *32  ] 
of  the  joint  tenancy,  yet  if  they  continue  to  deal  as 
partners  for  a  length  of  time,  a  severance  between  them- 
selves will  be  implied,  and  survivorship  will  not  hold.(c) 
This  denial  to  the  survivor  of  any  benefit  arising  from 
survivorship  is  a  maxim  of  lex  mercatoria,  of  which  the 
courts  will  take  notice  without  its  being  specially  plead- 
ed.{d)  It  has  been  said(e)  that  partners  are  either 
tenants  in  common  of  the  partnership  effects,  or  joint 
tenants  without  benefit  of  survivorship;  but  it  would 
seem,  that,  strictly  speaking,  partners  are  rather  to  be 
considered  as  falling  within  the  latter  denomination. (/) 

(a)  West  V.  Skip,  1  Vcs.  242.     S.  C.  2  Swfiinst.  58G. 

(b)  Co.  Litt.  182,  a. 

(c)  Jackson  v.  Jackson,  9  Ves.  591.     S.  C.  7  Ves.  535. 

(d)  Bellasis  v.  Hester,  1  Ld.  Raym.  281. 

(e)  Wats,  on  Part.  65 ;  and  see  2  Brownl.  99. 

If)  Abbott  on  Ship.  94.    Com.  Dig.  tit.  Merchant,  D.  3.  Bar.  Abr. 
tit.  Joint  Tenants  and  Tenants  in  Common,  C.  2  Beawes,99.  Annand 

6 


32  THE  INTEREST  OF  PARTNERS 

Each  partner  is  possessed  per  my  et  per  tout,  that  is,  by 
the  half  or  moiety  and  by  all,  or,  in  other  words,  each 
has  a  joint  interest  in  the  whole,  but  not  a  separate  in- 
terest in  any  particular  part  of  the  partnership  pro- 
perty ;  and  being  so  possessed,  and  because  the  title  of 
partners  is  undivided,  it  follows  that  all  have  a  unity,  or 
the  same  species  of  interest  in  the  stock  in  trade,  whether 
each  individual  partner  contributes  exactly  in  the  same 
proportion  or  not ;  but  their  several  degrees  of  interest 
must  be  regulated  according  to  the  stipulated  propor- 
tions, and  the  different  conditions  of  the  partnership. 
To  whatever  share  a  partner  may  be  entitled,  in  what- 
ever sum  the  firm  may  be  indebted  to  him,  he  has  no 
exclusive  right  to  any  part  of  the  joint  effects,  until  a 
balance  of  accounts  be  struck  between  him  and  his  co- 
partners, and  it  be  ascertained  precisely  what  is  the 
actual  amount  of  his  interest.(^) 

Besides  the  purchase  of  joint  stock,  partners  are 
sometimes  obliged  to  invest  part  of  their  capital  in  real 
property;  for  it  very  frequently  happens,  that  joint  un- 
dertakmgs  require  the  possession  of  lands  or  houses,  in 
order  to  carry  on  the  intended  trade  or  speculation. 
Wherever  that  is  the  case,  and  the  lands  or  houses 
purchased  with  the  joint  capital  are  held  for  the 
[  *33  ]  purpose*  of,  and  as  the  substratum  for,  the  part- 
is, Honiwood,  Cas.  in  Chan.  129.  It  seems  that  the  owners  of  a  ship 
are  not  interested  in  it  as  joint  tenants,  but  as  tenants  in  common.  £x 
parte  Harrison,  2  Rose,  76.(1) 

(g)  Fox  V.  Hanbury,  Cowp.  445.  Smith  v.  De  Silva,  Ibid.  469. 
West  V.  Skip,  1  Ves.  jun.  242.  S.  C.  2  Swanst.  586.  Lingenv.  Simp- 
son, 1  Sim.  &  Stu.  600. 


(1)  Merrill  v.  Bartlett,  TJiorndike  v.  De  Wolf,  6  Pick.  Rep.  46. 
120.  Harding  v.  Foxcroft,  6  Greenl.  Rep.  76.  Jackson  v.  Robinson, 
:-}  Mas.  Rep.  138.  Nicoll  v.  Miimford,  4  Johns.  Cha.  Rep.  522.  Con- 
tra S.  C.  on  appeal,  20  Johns.  Rep.  611,  when  it  was  held,  that 
though  the  part  owners  of  a  ship  are,  generally  speaking,  tenants  in 
common,  yet  there  may  be  a  special  partnership  between  them,  in  the 
ship  as  well  as  in  the  cargo,  in  regard  to  a  particular  voyage,  adventure, 
and  the  proceeds  arising  from  the  sale  of  the  ship  and  cargo,  and  the 
profits  of  the  adventure.  Ship  owners  are  analogous  also  to  partners, 
and  liable  as  such  for  necessary  repairs  and  stores  ordered  by  one  of 
themselves  for  the  vessel.  Scottin  v.  Stanley  et  al.  1  Dall.  Rep.  129. 


IN  REAL  PROPERTY.  33 

nership  concern,  the  partners  are  in  reality,  and  to  all 
beneficial  intents,  tenants  in  common  thereof,  without 
regard  to  the  form  of  conveyance,  the  individual  to 
whom  it  is  made,  or  the  length  of  time  for  which  the 
interest  is  to  endure.     Courts  of  law,  it  is  true,  must 
look  to  the  legal  estate ;  they  will  consider  the  survivor 
of  two  joint-tenants  as,  invariably,  entitled  to  the  whole 
by  survivorship ;  and  if  lands  are  conveyed  to  one  of 
several  partners,  they  will  invest  him  with  all  the  rights 
of  a  tenant  in  severalty,  excluding  from  their  attention 
the  funds  from  which  the  lands  were  bought,  and  the 
object  of  the  purchase.    But  courts  of  equity,  unfettered 
by  technical  rules,  seek  to  effectuate  the  intention  of  the 
parties,  and  are  guided  by  the  justice  of  each  particular 
case:  they,  consequently,  conceive,  that  there  is  a  ten- 
ancy in  common  between  partners  of  real  property,  and 
they  decree  the  person  in  whom  the  legal  estate  vests 
to  be  a  trustee  for  those  beneficially  interested.      In 
equity,  therefore,  real  estates,  bought  by  a  commercial 
partnership,  for  the  purpose  of  the  partnership  concern, 
are  to  be  considered  as  forming  a  part  of  the  partner- 
ship fund.(/i)(l)     Thus,  where  five  persons  purchased 
a  tract  of  ground,  with  the  intention  of  draining  it,  and 
the  conveyance  was  to  them  as  joint-tenants  in  fee,  but 
they  contributed  rateably  to  the  purchase,  they  were 
held  to  be  tenants  in  common  in  equity ;    and  though 
one  of  the  five  undertakers  deserted  the  partnership  for 
thirty  years,  yet  he  was  afterwards  admitted  on  such 
terms  as  would  place  the  others  on  a  footing  of  equality 

(h)  Thornton  v.  Dixon,  3  Bro.  C.  C.  199.  Per  Lord  Hldon,  Craw- 
shay  V.  Maule,  1  Swanst.  608,  521.  See  also  Sugd.  on  Vend,  and 
Purch.  (5th  ed.)  522. 


(1)  Sigourney  V.  Munn,  7  Conn.  Rep.  11.  Greene  v.  Greene, 
Hamm.Rep.  (Oiiio,)  535.  ffox/e  v.  Carr,  1  Sumn.  Rep.  174.  "Where 
parties  purchase  an  estate  jointly,  for  the  purpose  of  their  trade,  it  is 
considered  in  equity  as  an  estate  in  common  in  England;  and  in  Vir- 
ginia, where  the  Jws  accrescendiis  abolished,  it  is  so  considered  in  laiv 
as  well  as  equity."  Per  Green,  J.,  Deloney  v.  Hutcheson  et  al.  2 
Rand.  Rep.  183.  See  Brady  v.  Colhovn,  1  Penns.  Rep.  140. 


33  THE  INTEREST  OF  PARTNERS 

with  him.(?)  So,  if  a  person  becomes,  by  his  acts,  a 
partner,  in  a  colliery,  for  instance,  in  which  land  is  ne- 
cessary to  carry  on  the  trade,  the  interest  in  a  lease  will 
pass,  by  operation  of  law,  as  an  incident  to  the  trade, 
without  being  affected  by  the  statute  of  frauds;  and  if 
one  of  the  partners  take  a  lease  of  the  colliery  in  his 
own  name,  he  will  be  deemed  to  take  and  hold  the  pre- 
mises for  himself  and  his  co-partners  in  equal  shares.(A') 
On  the  same  principle,  if  the  lease  of  the  premises, 
where  the  joint  trade  is  carried  on,  be  renewed  by  one 

partner,  in  his  own  name,  clandestinely,  it  is  a 
[  *34  ]  *trust  for  the  partnership,  and  is  to  be  accounted 

for  as  partnership  property.(/)  And  where  real 
estates  are  purchased  with  the  partnership  funds,  but 
conveyed  only  to  one  partner,  they  are,  nevertheless, 
partnership  property.  But  if  estates  are  purchased  out 
of  the  partnership  fund,  and  conveyed  to  one  partner 
under  a  specific  agreement  that  the  estates  shall  be  his, 
and  he  shall  be  debtor  for  the  money,  the  estates  are 
his  separate  property.(l)  And  a  provision  having  been 
made  for  the  wife  of  such  purchaser  previous  to  the 
marriage,  and  at  that  time  an  infant,  in  bar  of  dower, 
thirds,  and  all  claim  upon  the  real  and  personal  estate 
of  her  husband,  which  in  its  nature  was  precarious  and 
uncertain,  she  was  held  entitled  to  dower  against  the 
assignees  under  a  joint  commission  against  the  part- 

(f*)  Lake  v.  Craddock,  3  P.  Wins.  158.  S.  C.  1  Eq.  Ca.  Abr.  291, 
pi.  3.  And  see  what  is  said  by  Lord  Hardwicke  in  Rigden  v.  Vallier, 
2  Ves.  258.  S.  C.  3  Atk.  731. 

(k)  Foster  v.  Hale,  3  Ves.  696.  S.  C.  5  Ves.  308. 

(/)  Featherstonhaugh  v.  Fenwick,  17  Ves.  298.  See  also  Burroughs 
V.  Elton,  11  Ves,  29.  Where  a  partner,  since  deceased,  contracted  in 
his  own  name  for  a  lease  of  premises  to  be  employed  in  the  partner- 
ship trade,  Lord  Eldon  refused  to  restrain  the  landlord  from  granting  a 
lease  to  his  representatives,  on  the  ground  that  the  contract  was  made 
with  him  alone,  but  he  restrained  the  representatives  from  disposing  of 
the  lease,  when  granted,  except  for  partnership  purposes,  and  with  the 
assent  of  the  surviving  partner.     Alder  v.  Fouracre,  3  Swanst.  489. 


(1)  See,  and  consider,  Goodwin  \.  Richardson,  11  Mass.  Rep.  469, 
particularly  what  is  said  at  page  475,   1  Sumn.  Rep.  182. 


IN  REAL  PROPERTY.  34 

ners.(m)(l)  When  it  is  doubtful  whether  the  purchasers 
bought  the  property  to  carry  on  trade,  an  inquiry  will 
be  directed  before  the  master  to  ascertain  the  fact.(rz) 

But  although,  during  the  lives  of  the  partners,  free- 
hold estates,  purchased  by  a  commercial  partnership,  as 
an  article  of  stock,  are  considered  as  forming  a  portion 
of  the  joint  fund,  yet,  on  the  death  of  any  of  the  part- 
ners, it  does  not  appear  clearly  established,  whether  they 
pass  as  real  estate,  or  as  stock,  although,  according  to 
modern  decisions,  it  may  perhaps,  be  considered  as  set- 
tled, that  the  right  of  survivorship  does  not  exist  even 
in  such  a  case.(o)  (2)  Formerly,  indeed,  it  was  held, 
that  lands,  purchased  for  the  purpose  of  as  partnership 
concern,  were  in  all  respects  a  portion  of  the  partner- 
ship fund,  and  were  therefore  distributable  as'personal 
property .(/>)  (3)     And  this  doctrine  seems  more  conso- 

[m)  Smith  v.  Smith,  5  Ves.  189,  And  see  Ex  parte  Emly,  1 
Rose,  64. 

(n)  1  Ves.  jun.  435. 

(o)  See  Mr.  Eden's  note  to  Thornton  v.  Dixon,  3  Bro.  C.  C.  200. 

(p)  JefTerys  v.  Small,  1  Vern.  217.  Lake  v.  Craddock,  supra.  See, 
also,  Elliot  V.  Brown,  1  Vern.  217.  S.  C.  3  Swanst.  489,  n.  and  cited 
by  Lord  Eldon,  9  Ves.  597. 


(1)  See  Richardson's  Ex.  v.  Wyatfs  Ex.  2  Desaus.  Cha.  Rep.  471. 
The  case  is  reported  in  a  very  loose,  confused  manner,  and  the  fact  of 
a  renunciation  of  dower  is  asserted  in  one  of  the  exceptions. 

(2)  Two  men,  who  were  partners  in  a  drove  of  cattle,  applied  part 
thereof  to  a  joint  purchase  of  a  settlement  right  to  land,  and  one  of 
them  died ;  the  survivor  had  the  land  surveyed  by  virtue  of  a  land- 
oflice  treasury  warrant,  and  sold  it  to  a  third  person,  who,  having  no- 
tice of  the  partnership  right,  obtained  a  grant  of  the  whole  from  the 
Commonwealth  : — Held,  that  purchaser  from  the  heir  of  the  deceased 
partner  was  entitled  to  his  share  of  the  land.  Edgar  v.  Donally  et  al. 
2  Mumf.  387. 

(3)  In  Tennessee  the  Act  of  1784,  c.  22,  s.  6,  provides,  "  that 
estates  held  in  joint-tenancy,  for  the  purpose  of  carrying  on,  and  pro- 
moting trade  and  commerce,  or  any  other  useful  work,  or  manufacture, 
established  and  pursued,  with  a  view  of  profits  to  the  parties  therein 
concerned,  shall  be  vested  in  the  surviving  partner  or  partners  in  order 
to  enable  him  or  them,  to  settle  and  adjust  the  partnership  business ; 
and  pay  off  the  debts  which  may  have  been  contracted  in  pursuit  of 
the  joint  business;  but  as  soon  as  the  same  shall  be  effected,  the  sur- 
vivor, or  survivors,  shall  account  with,  and  pay  and  deliver  to  the  heirs, 
executors,  and  assigns  respectively  of  the  deceased  partners,  all  such 


34  THE  INTEREST  OF  PARTNERS 

nant  to  natural  equity;  for  if  the  jus  accrescendi  were 
allowed  to  operate  with  regard  to  real  property,  it  might 

happen  that  the  partner,  indebted  to  the  partner- 
[  *35  ]  ship  for  his  *proportion  of  the  purchase  money, 

would  succeed  to  the  whole,  while  the  represen- 
tatives of  the  deceased  partner,  who  advanced  the  mo- 
ney, would,  by  his  death,  be  deprived  of  the  benefit  he 
intended  should  result  from  the  purchase.(9')  However, 
Lord  Thurlow^  determined,(r)  that,  although  a  co-part- 
nership agreement  might  alter  the  nature  of  real  pro- 
perty ,(s)  it  must  be  express  to  do  so ;  and  that  if  the 
intention  of  the  parties,  that  such  a  conversion  should 
take  place,  be  not  sufficiently  manifested,  the  houses 
and  lands  they  hold  and  use  in  the  trade  will  descend 
according  to  the  rules  of  the  common  law.  Nor  does 
this  determination  stand  unsupported ;  a  succeeding,  and 
a  most  eminent  judge,  has  considered  himself  bound  by 
his  authority.  In  two  cases(/)  which  came  before  the 
late  learned  Master  of  the  Rolls  (Sir  W.  Grant),  he  re- 
cognised and  acted  upon  the  decision  of  Lord  Thurlow, 
considering  the  question  as  concluded  by  it.  But,  not- 
withstanding the  respect  due  to  judicial  opinions  deliver- 
ed by  judges  of  such  celebrity,  it  seems  that  the  princi- 
ple on  which  they  are  founded  is  at  present  very  doubt- 
ful, if  not  expressly  overruled.  In  the  case  of  Townsend 
v.  Devaynes{u)  Lord  Eldon  decided,  that  the  freehold  of 

{ci)  Lake  v.  Craddock,  supra. 

(?•)  Thornton  v.  Dixon,  supra.     See,  also,  Stuart  v.  Marquis  of 
Bute,  11  Ves.  665,  6. 

(s)  See  Ripley  v.  Waterworth,  7  Vesey,  425. 

{t)  Bell  V.  Phyn,  7  Vesey,  453.     Balmain  v.  Shore,  9  Vesey,  500. 

{u)  Mont,  on  Partn.  in  notes,  p.  97. 

part,  share,  or  suras  of  money,  as  he  or  they  may  be  entitled  to  by 
virtue  of  the  original  agreement,  or  according  to  his  or  their  share  or 
part  in  the  joint  concern,  in  the  same  manner  as  partnership  is  usually 
settled  between  joint  merchants,  or  the  representatives  of  their  deceased 
partners."  Under  this  act  it  has  been  held,  that  the  surviving  partner 
has  a  complete  and  perfect  right  to  sell  the  real  estate,  without  regard 
to  the  state  of  the  partnership  accounts,  to  which  a  purchaser  from  him 
was  not  obliged  to  look — the  power  being  absolute  to  sell,  and  not  upon 
the  condition,  if  needful  for  payment  of  debts.  McAllister  v.  Mont- 
gomery, 3  Hayw.  Rep.  94. 


IN  REAL  PROPERTY.  35 

premises,  purchased  by  partners,  for  the  purpose  of  car- 
rying on  the  business  in  which  they  are  engaged,  is,  on 
the  death  of  one  partner,  to  be  considered  as  personal 
estate.  The  same  noble  and  learned  lord  is,  in  another 
case,(v)  represented  to  have  stated  it  as  his  opinion,  that 
all  property  involved  in  a  partnership  concern  ought  to 
be  considered  as  personal.  And  the  opinion  entertained 
by  gentlemen  of  the  first  professional  eminence  is,  that 
where  real  estate  has  been  purchased  with  partnership 
property,  for  the  use  of  the  partnership,  it  becomes  per- 
sonal property,  not  only  as  between  the  members  of  the 
partnership  respectively,  and  as  between  the  partnership 
and  creditors,  but  also  as  between  the  representatives  of 
a  deceased  and  the  surviving  paTtner.(z^))  (1) 

(v)  Selkrig  v.  Davies,  2  Dow.  P.  C.  242.     See,  also,  Crawshay  v. 
Maule,  1  Swanst.  508.  521. 
(w)  Thornton  v.  Dixon,  supra. 

(1)  The  English  cases  upon  the  subject  of  real  estate  held,  for 
partnership  purposes,  by  the  partners,  it  has  been  remarked  by  Chief 
Justice  TiLGHMAN,  (7  Serg.  &l  Rawle,  442,)  arose  out  of  disputes  be- 
tween the  heirs  and  personal  representatives  of  deceased  partners ; — 
but  the  difference  of  opinion  which  may  be  discovered  in  those  cases, 
does  not  apear  to  have  created  any  difficulty  in  the  minds  of  the  Judges 
in  New  York  in  a  case  between  the  administratrix  of  a  deceased  part- 
ner and  the  surviving  partner.  It  was  an  action  of  assumpsit,  brought 
by  the  administratrix,  to  recover  from  the  surviving  partner,  a  moiety 
of  the  moneys  arising  from  the  sale  of  a  still-house  and  lot  of  ground, 
used  for  partnership  purposes,  and  sold  by  the  intestate  and  surviving 
partner,  to  the  latter  of  whom  the  whole  purchase-money  had  been 
paid.  The  decision  was,  that  when  real  estate  is  held  by  partners  for 
partnership  purposes,  they  do  not  hold  it  as  partners,  but  as  tenants  in 
common,  and  that  the  rules  of  partnership  properly  do  not  apply  to  it. 
Coles  adm.  v.  Coles,  15  Johns.  Rep.  159.  By  positive  agreement,  as 
between  partners  and  their  heirs,  and  personal  representatives,  the 
character  of  real  estate  may  be  changed — it  may  be  brought  into  stock," 
and  considered  as  personal  property — but  if  a  conveyance  be  taken  to 
partners  as  tenants  in  common,  without  any  mention  of  agreement  to 
consider  it  as  stock,  though  it  be  acquired  for  partnership  purposes,  as 
regards  purchasers,  without  notice,  from  either  partner;  or  separate 
creditors,  it  is  to  be  considered  as  real  estate.  McIJermot  v.  Lawrence, 
7  Serg.  &  Rawle,  438.  Forde  v.  Heron,  4  Munf.  316.  And  though 
the  land  may  have  been  purchased  with  partnership  funds,  that  circum- 
stance (unless  there  be  notice,  1  Sumn.  182,  1 83,)  will  not  raise  an  equity 
in  favour  of  partnership  creditors  against  the  separate  creditor  (by  mort- 
gage) of  one  of  the  partners,  Forde  v.  Heron.     See  also  Goodwin  v. 


(36) 

SECTION  II. 

Of  AcU  hy  which  one  Partner  may  hind  the  Firm. 

The  object  of  our  last  inquiry  was  to  ascertain  what 
interest  partners  respestively  possessed  in  the  joint  per- 
sonal stock,  and  in  real  property  acquired  through  the 
medium  of  the  partnership  funds :  we  will  now  endeav- 
our to  explain  by  what  acts  one  partner  may,  in  com- 
mercial transactions,  bind  the  firm.    It  has  been  well  ob- 


Jtichardson,  11  Mass.  Rep.  469.  Deloney  v.  Hutcheson  et  al.  2  Rand. 
Rep.  183.  Chancellor  Kent  has  remarked  in  a  late  publication  (3 
Coram.  39,  2nd  edit.)  that  "  these  latter  cases,  and  particularly  the  one 
in  New  York,  go  to  the  entire  subversion  of  the  equity  doctrine  now 
prevalent  in  England,  but  the  other  American  cases  are  more  restricted 
in  their  operation,  and  are  not  inconsistent  with  the  most  correct  and 
improved  view  of  the  English  Law."  His  remark  has  reference  to 
McAllister  v.  Montgomery,  and  Edgar  v.  Donally,  the  decision  in 
the  latter  of  which  cases  he '  observes,  "  was  a  recognition  of  the  true 
rule  of  equity  on  the  subject."  See  also  1  Sumn.  Rep.  183.  ih.  seq. 
And  in  a  late  case  in  Equity  in  South  Carolina  it  appeared,  that  J.  A. 
conveyed  to  T.  C.  the  undivided  moiety  of  half  a  lot  of  land,  which 
he  had  held  in  common  with  complainants,  and  of  which  partition  had 
been  made.  In  1817,  complainants  conveyed  to  J.  A.  and  T.  C.  the 
other  half  of  the  lot,  and  took  in  payment  two  notes,  one  of  J.  A. 
indorsed  by  T.  C.  and  .the  other  of  T.  C.  indorsed  by  by  J.  A.  J.  A. 
and  T.  C.  afterwards  erected  a  steam  mill  on  that  part  of  the  lot  of 
which  the  moiety  had  been  first  conveyed  by  J.  A.  using  the  other  part 
as  appendant  thereto.  The  business  of  sawing  lumber  was  carried  on 
jointly;  bills  for  lumber  were  made  out  in  the  name  of  "A.  &  C." 
and  they  sued,  and  were  sued,  as  "A.  &  C."  In  1820,  A.  &  C.  be- 
came insolvent,  and  the  bill  was  fded  by  complainants  to  obtain  pay- 
ment of  the  notes  above  mentioned,  out  of  the  mill  and  lot,  as  part- 
nership property,  in  preference  to  the  separate  creditors  of  J.  A.  &  T. 
C.  A  certificate  of  J.  A.  &  T.  C.  dated  1822,  after  their  insolvency, 
declaring  that  they  held  the  mill  and  lot  as  partnership  property,  was 
offered  in  evidence,  and  held  to  be  admissible.  It  was  held,  that  the 
circumstances  were  suflicient  to  establish,  that  the  mill  and  lot  were 
partnership  property,  and  that  complainants  were  entitled  to  payment 
in  preference  to  separate  creditors  of  tlie  partners:  subject,  however, 
as  to  the  moiety  of  A.  to  tlie  claims  of  his  creditors  who  had  obtained 
judgments  against  him  before  his  conveyance  to  T.  C,  who  were 
bound,  nevertheless,  first  to  exhaust  J.  A.'s  private  estate.  Winslow 
et  ux  V.  Chiffclle  ct  al.  Harper's  Equity  Reports,  25. 


OF  ACTS  BV  WHICH  ONE  PARTNER  MAY  BIND  THE  FIRM.    36 

Berved,(ar)  that  the  transactions  of  partners,  in  which 
they  all  severally  and  respectively  join,  differ  in  nothin,^, 
in  respect  to  legal  consequences,  from  transactions  in 
which  they  are  concerned  individually.  We  are  here, 
however,  chiefly  to  consider  in  instances,  by  virtue  of 
the  relation  subsisting  between  them,  the  act  of  one 
shall  be  construed  as  the  act  of  all.  It  may  be  laid 
down,  that  partners  are  bound  universally  by  what  is 
done  by  each  other  in  the  course  of  the  partnership  bu- 
siness. The  hability,  under  contracts,  is  commensurate 
and  co-extensive  with  their  rights.  Although  the  gen- 
eral rule  of  law  is,  that  no  one  is  hable  upon  any  con- 
tract, except  such  as  are  privy  to  it;  yet  this  is  not  con- 
travened by  the  liability  of  partners,  since  they  may  be 
imagined  virtually  present  at,  and  sanctioning  the  pro- 
ceedings they  singly  enter  into  in  the  course  of  trade  ; 
or  as  each  vested  with  a  power,  enabling  him  to  act  at 
once  as  a  principal,  and  as  the  authorised  agent  of  his 
co-partners.  By  entering  into  the  partnership,  each 
party  reposes  confidence  in  the  other,  and  constitutes 
him  his  general  agent,  as  to  all  the  partnership  concerns ; 
and  it  would  be  a  great  impediment  to  commerce,  if,  in 
the  ordinary  transactions  of  their  trade,  it  were  neces- 
sary that  the  actual  consent  of  each  partner  should  be 
obtained,  or  that  it  should  be  ascertained  that  the  trans- 
action was  really  for  the  benefit  of  the  firm  ;  hence  the 
act  of  one,  when  it  has  the  appearance  of  being  on  be- 
half of  the  firm,  is  considered  as  the  act  of  the  rest. 
It  is  for  the  advantage  of  partners  themselves,  that 
they  are  thus  held  liable ;  as  the  credit  of  their 
*firm  in  the  mercantile  world  is  hereby  great-  [  *37  ] 
ly  enhanced,  and  a  vast  facihty  is  given  to  all 
their  dealings ;  insomuch,  that  they  may  reside  in  dis- 
tant parts  of  the  country,  or  in  diflerent  quarters  of  the 
globe.  A  due  regard  to  the  interest  of  strangers  is,  at 
the  same  time,  observerd ;  for  where  a  merchant  deals 
with  one  of  several  partners,  he  relies  upon  the  credit  of 
the  whole  partnership,  and  therefore  ought  to  have  his 
remedy  against  all  the  individuals  who  compose  it. 

{x)  See  Wats,  on  Partn.  167. 

7 


37  OF  ACTS  BY  WHICH  ONE  PARTNER 

It  is  a  clear  and  undeniable  proposition  of  law,  that 
one  partner  may,  by  his  own  acts,  bind  his  co-partners 
in  all  transactions  relating  to  the  partnership.(i/)  The 
power  of  an  individual  by  partner,  his  separate  act,  thus 
to  induce  a  joint  responsibility,  is  not  confined,  simply,  to 
the  drawing  or  accepting  a  negotiable  instrument,  which 
species  of  engagement,  according  to  the  present  course 
of  mercantile  dealings,  is  of  frequent  occurrence,  but 
the  members  of  a  firm  will  be  bound  by  any  contract  or 
engagement  into  which  any  single  partner  may  enter, 
provided  the  contract  or  engagement  itself  has  a  refer- 
ence to  the  partnership.  In  a  case  that  arose  in  the 
reign  of  Queen  Anne^{z)  it  was  held,  by  Lord  Ch.  J. 
jFZo//,  that  if  one  member  of  a  firm  of  bankers  receive  a 
sum  of  money  to  purchase  a  ticket  in  the  lottery,  and 
undertake  to  pay  the  benefit  arising  from  it,  the  other 
members  are  liable  if  the  ticket,  when  purchased,  be 
drawn  a  prize.  So  a  partner,  whilst  employed  in  trans- 
acting the  partnership  business,  may  borrow  money  for 
the  purpose  of  defraying  his  expenses,  and  it  will  be 
a  charge  upon  the  whole  firm.(a)  In  fact,  whatever  be 
the  nature  of  the  contract,  there  is  no  doubt  but  that 
the  act  of  every  single  partner,  in  a  transaction  relating 
to  the  partnership,  binds  all  the  others.(5)  (1)  And  the 
act  or  assurance  of  one  partner,  made  with  reference  to 
business  transacted  by  the  firm,  will  bind  all  the  part- 

[y]  Harrison  v.  Jackson,  7  T.  R.  207. 

(z) V.  Layfield,  1  Salk.  292.  S.  C.  Holt's  Rep.  434. 

(a)  Rot.hwell  v.  Humphreys,  1  Esp.  N.  P.  C.  406. 
(6)  Per  Lord  Mansfield,  Hope  v.  Cusl,  cited  1  East,  48.     Swan  v. 
Steele,  7  East,  210.(2) 

(1)  Lamb  et  al.  v.  Diirant,  12  Mass.  Rep.  56,  57.  Livingston  v. 
Roosevelt,  4  Johns.  Rep.  255.  Mills  v.  Barbour,  4  Day,  430.  See 
8  Cow.  Rep.  690,  691. 

(2)  Mr.  Coimpi  has  remarked,  in  relation  to  this  case,  (Com.  Contr. 
vol.  i,  p.  309,  edit.  N.  York,  1819,)  "that  it  does  not  appear  from  the 
case  how  Clerk,  one  of  the  defendants,  became  a  party."  It  is  evident 
from  the  report  that  Clerk  is  but  the  addition  of  the  defendant  Steele. 
See  Weld  v.  Hornby,  Clerk,  Roe  dem.  Briine,  Clerk,  v.  Rawlings. 
Richmond  v.  Johnson,  Clerk,  7  East,  195,  279,  583.  The  remark 
does  not  appear  in  the  2d  edition  (Lond.  1824,)  but  the  parties  are 
still  stated  to  be,  Swan  and  others  v.  Steele,  Clerk  and  fVood. 


MAY  BIND  THE  FIRM.  St 

ners,  even  although  it  be  out  of  the  regular  course,  and 
be  contrary  to  an  express  arrangement  amongst  them- 
selves, because  it  is  within  the  scope  of  his  authority. 
To  illustrate  this  position,  a  case  may  be  put  where  two 
persons,  in  partnership  for  the  sale  of  horses,  agree 
between  themselves  never  to  warrant  any  horse ; 
yet,  though  this  be  their  *coui'se  of  business,  it  is  [  *38  ] 
clear  that  if  upon  the  sale  of  a  horse,  the  pro- 
perty of  the  partnership,  one  of  them  should  give  a  w^ar- 
ranty,  the  other  would  be  thereby  bound,  because  the 
public  cannot  be  supposed  cognizant  of  their  private  ar- 
rangements.(c)  But  the  implied  authority  of  one  part- 
ner to  bind  another  is  generally  limited  to  such  acts  as 
are,  in  their  nature,  essential  to  the  general  object  of  the 
partnership.  Indeed,  an  authority  in  one  partner  to 
bind  the  firm  will  not  be  implied,  except  in  matters 
which  are  necessary  to  carry  on  the  trade  in  which  the 
partners  have  embarked. (J)  Therefore  it  has  been  de- 
cided that  a  joint  interest  in  and  occupation  of  a  farm 
by  two  persons  is  not  a  partnership,  so  as  to  convey  to 
each  an  implied  authority  to  bind  the  other  by  the  ac- 
ceptance of  bills  of  exchange  for  payments  in  respect  of 
the  farm.  As,  where  A.  and  B.  agreed  with  C.  to  take  a 
farm,  and  to  pay  for  the  stock,  &c.  at  a  valuation,  by 
bills  at  three  months,  and  B.  becoming  subsequently  un- 
able to  attend  to  the  business,  A.  and  C.  without  the 
knowledge  or  consent  of  B.,  entered  into  a  new  agree- 
ment to  pay  part  in  cash,  and  the  remainder  by  bills  at 
six  and  twelve  months,  which  A.  accepted  for  himself 
and  B.,  it  was  held  that  B.  having  never  ratified  the 
giving  such  bills  by  A.,  the  mere  joint  occupation  of  the 
farm  by  himself  and  A.  could  not  operate  by  relation  so 
as  to  render  the  bills  binding  on  him  contrary  to  the 
terms  of  the  original  contract,  and  without  his  assent. (e) 
We  will,  in  the  first  place,  consider  in  what  cases  one 

(c)  Per  Mbott,  C.  J.,  Sandilands  v.  Marsh,  2  B.  &  A.  G79.  And 
see  Fenn  v.  Harrison,  3  T.  R.  760. 

{d)  Per  Best  C.  J.,  Stead  v.  Salt,  3  Bingh.  103.  Bourne  v.  Freeth, 
9  B.  &  C.  641. 

(e)  Greenslade  v.  Dower,  7  B.  &  C.  635.  S.  C.  1  Mann.  Si  Ryl. 
640. 


38  ONE  PARTNER  BINDING 

partner  is  invested  by  law  with  the  power  of  binding  his 
co-partners,  by  the  making,  the  drawing,  the  indorsing, 
or  accepting  of  promissory  notes  or  bills  of  exchange, 
and,  at  the  same  time,  we  will  point  out  the  instances 
in  which  that  authority  is  denied  to  him. 

The  power  of  one  partner  to  bind  the  firm  in  partner- 
ship transactions,  by  the  making  of  promissory  notes,  or 
the  drawing,  accepting,  or  indorsing  of  bills  of  exchange, 
has  never  been  disputed.(/)  (1)  It  is  within  the  scope 
of  a  trading  partner's  general  authority  so  to  act,  with- 
out the  necessity  of  the  creditors  inquiring  whether  the 
particular  partner  had  such  an  authority  expressly  de- 
legated to  him.  This  was  so  settled  in  the  reign 
[  *39  ]  of  *King  William  the  Third,  by  the  case  of 
Pinkney  v.  HalL(g)  and  in  conformity  with  the 
custom  of  merchants,  although  many  cases  are  extant,  in 
which,  previously  to  that  period,  the  power  of  one  part- 
ner to  bind  his  co-partners  by  such  means  was  recog- 
nised. 

The  signature  of  one  partner,  as  the  maker  of  a  joint 
promissory  note,(2)  or  the  drawer  of  a  bill  of  exchange  in 
respect  of  a  joint  transaction,  is  therefore  binding  upon 
his  copartner,(A)  (3)  and  equally  binding  is  his  accept- 

(/)  Per  Lord  Kenyan,  Harrison  v.  Jackson,  supra. 
Ig)  1  Salk.  126.  S.  C.  1  Ld.  Raym.  175. 

(h)  Smith  V.  Baily,  11  Mod.  401.  Lane  v.  Williams,  2  Vern.277. 
S.  C.  16  Vin.  Abr.  243. 

(1)  Livingston  v.  Roosevelt,  4  Johns.  Rep.  265.  The  marginal 
note  to  the  case  of  Graves  v.  Merry  at  al.  6  Cow.  Rep.  701,  in  re- 
lation to  the  authority  of  a  partner  to  sign  notes  in  the  partnership 
name,  is  incorrect — the  question  in  that  case  was,  whether  the  note 
was  drawn  before  or  after  a  dissolution  of  the  partnership. 

(2)  Coursey  v.  Baker,  7  Harr.  &l  Johns.  28.  Storer  v.  Hinchley 
et  at..  Champion  v.  Mumford  et  al.  Kirby's  Rep.  170.  4  Johns.  266. 
Drake  v.  Elwyn,  1  Caines'  Rep.  184,  1st  edition — the  report  in  the 
2d  edition  is  incorrect.  Vallett  v.  Parker,  6  Wend.  615.  Foster  v. 
Andrcivs,  2  Penns.  Rep.  160.  Porter  v.  Cumings,  7  Wend.  172,  a 
very  particular  case.  See  Winship  v.  The  Bank  United  States,  5 
Pet.  S.  C.  Rep.  529. 

(3)  Per  Brainerd,  J.  Mills  v.  Barbour,  4  Day's  Rep,  430.  Dou- 
gal  V.  Cowles  et  al.  5  Day's  Rep.  511.  Le  Boy  et  al.  v.  Johnson,  2 
Peters'  Sup.  Ct.  Rep.  186. 


THE  FIRM  BY  BILL  OR  NOTE.  39 

ance  of  a  bill  of  exchange  ;(i)  for,  the  bill  being  drawn 
upon  them  jointly,  the  acceptance  of  a  single  partner,  in 
the  names  of  both,(l)  is  in  legal  effect  a  joint  accept- 
ance.(^)  So  prima  facie,  the  indorsement  of  a  bill  or 
note  by  one  partner,  in  the  name  of  the  partnership, 
binds  all  the  firm.(/)(2)  Even  where  one  partner  in- 
dorses a  bill  in  a  different  name  from  that  of  the  actual 
firm,  such  an  indorsement  will  be  binding,  if  it  be  proved 
that  the  partner  was  in  the  habit  of  issuing  bills  into  the 
world  indorsed  under  the  former  designation :  because 
such  evidence  would  estabhsh  an  acting  by  procuration, 
and  there  seems  to  be  no  doubt  but  that  one  partner 
may  so  act  for  the  whole  firm.(m)(3)  Nor  in  the  case 
of  a  note  or  bill  does  it  form  any  valid  objection  to  their 
enforcement  against  a  firm,  that  the  former  is  made,  or 
the  latter  accepted,  by  one  partner  in  his  individual 
name,  if  it  appear  from  the  securities  themselves  that  it 
was   intended  they  should  have  a  joint  operation:  in 

(i)  Anon.  Styles,  370.     Bull.  Nisi  Prius,  279. 

(k)  Anon.  Holt,  67.  Pinkney  v.  Hall,  1  Salk.  126.  S.  C.  1  Ld. 
Rayra.  175. 

(/)  Wells  V.  Masterman,  2  Esp.  N.  P.  C.  731.  Swan  v.  Steele,  7 
East,  210.  Ridley  v.  Taylor,  13  East,  175.  Where  a  bill  or  note  is 
payable  to  several  persons,  not  in  partnership,  the  right  to  transfer  it  is 
in  all  collectively,  not  in  any  individually ;  and  an  indorsement  by  and 
in  the  name  of  one  only  will  not  give  the  indorsee  a  right  to  sue.  Car- 
vick  V.  Vickery,  Dougl.  653,  n.  So,  where  a  bill  is  drawn  on  two 
persons,  who  are  not  partners,  if  it  is  only  accepted  by  one,  it  must  be 
protested.     Holt,  297.     Mar.  64.     Beawes,  pi.  228. 

(m) .  Williamson  v.  Johnson,  1  B.  &;  C.  146. 


(1)  Or  even  in  his  own  name,  Dougal  v.  Cowles  et  al.  5  Day's  Rep. 
511.     Per  Baldwin,  J. 

(2)  Manhattan  Co.  v.  Leclyard  et  al.  1  Caines'  Rep.  192.  See  Kane 
el  al.  V.  Schofield,  3  Caines'  Rep.  368.  McGoivan  v.  TJie  Bank  of 
Kentucky,  5  Litt.  Rep.  271.  And  one  of  two  partners  may  give  an 
authority  to  a  clerk,  under  the  firm  of  the  house,  who  may,  in  conse- 
quence thereof,  accept  bills,  and  sign,  or  indorse  notes,  in  the  name  of 
the  Company.     Tillier  v.  fThiteheml,  1  Dall.  269. 

(3)  One  member  of  a  firm  may  indorse  a  note,  made  payable  to  the 
firm,  to  himself,  using  the  style  of  the  firm  for  that  purpose,  and  as  in- 
dorsee, in  his  individual  capacity,  sue  the  maker  of  the  note,  and  re- 
cover. Kirby  v.  Cogswell,  1  Caines'  Rep.  505.  Burnhum  v.  IVhit- 
iier,  5  N.  Hamp.  Rep.  334. 


39  ONE  PARTNER  BINDING 

such  cases  the  holder  may,  at  his  election,  enforce  pay- 
ment either  jointly  against  the  firm,  or  separately  against 
the  party  whose  signature  is  attached.(n)(l)  Thus,  a 
promissory  note,  by  which  the  maker  individually, 
[  *40  ]  but  *on  the  behalf  of  himself  and  partners,  en- 
gaged to  pay  a  stipulated  sum,  has  been  held  to 
affect  the  whole  firm ;  and  it  is  not  to  be  considered  as 
a  mere  personal  undertaking,  by  the  individual  partner, 
to  pay  a  debt  due  from  himself  and  his  co-partners. (o) 
In  like  manner,  a  bill  of  exchange  drawn  upon  a  firm, 
but  accepted  by  one  in  the  name  of  the  other  partner, 
is  binding  upon  the  firm,  because  the  mere  acceptance, 
as  indicating  an^  intention  to  be  bound  by  the  terms  of 
the-request  in  the  bill,  would  be  sufficient  to  give  the  bill 
validity,  and  the  effect  of  that  acceptance  cannot  there- 
fore be  controlled  by  the  addition  of  the  name  of  an  in- 
dividual partner.(yj)     And  although  the  indorsement  of 

(n)  Hall  V.  Smith,  1  B.  &  C.  407.  See  Clerk  v.  Blackstock,  Holt's 
N.  P.  C.  474.  March  v.  Ward,  Peake's  N.  P.  C.  130.  Wilks  v.  Back, 
2  East,  264. 

(o)  Lord  Galway  v.  Matthew,  1  Campb.  403.  In  Hall  v.  Smith,  1 
B.  &  C.  497,  it  was  held  that  a  promissory  note,  beginning,  "  I  pro- 
mise to  pay,"  signed  by  one  member  of  a  firm  for  himself  and  his 
partners,  was  binding  upon  the  party  signing  as  a  several  note,  or  as  a 
joint  note  was  binding  upon  the  firm.  [^Bob  v.  Halsey  et  al.  11  Johns. 
Rep.  544.] 

(p)  Mason  v.  Rumsey,  1  Campb.  384.  Wells  v.  Masterman,  supra. 
In  the  case  of  Thomas  v.  Clarke,  2  Stark.  N.  P.  C.  451.  Lord  C.  J. 
Abbott  held,  that  a  partner  who  executed  a  charter-party  of  affreight- 
ment, and  in  the  commencement  of  it  professed  to  contract  for  himself 
and  his  co-partner,  thereby  bound  the  latter,  although  all  the  stipula- 
tions and  obligations  in  the  remaining  part  of  the  instrument  were  made 
in  the  name  of  the  said  freighter. 


(1)  Doty  V.  Bates  et  al.  11  Johns.  Rep.  544.  See  Hunt,  adm.  v. 
Adams,  6  Mass.  Rep.  519.  It  must  appear  in  all  cases,  prima  facie, 
from  the  security  sought  to  be  enforced  against  a  partnership,  that  it 
was  intended  to  have  a  joint  operation,  or  it  M'ill  not  be  binding  upon 
the  partnership.  Ripley  v.  Kingsbury,  as  stated  1  Swifs  Dig.  Laws 
of  Connecticut,  342,  S.  C.  1  Day's  Rep.  150.  Manufacturers  and 
Mechanics  Bank  v.  Winship,  5  Pick.  Rep.  11.  And,  therefore,  if  a 
partner  borrow  a  sum  of  money,  and  gives  his  own  security  for  it,  it 
does  not  become  a  partnership  debt  by  being  applied  for  partnership 
purposes,  with  the  knowledge  of  the  other  partner.  Bevan  v.  Leivis, 
1  Sim.  Rep.  376.     Jacques  v.  Marqttand,  6  Cow.  Rep  497. 


THE  FIRM  BY  BILL  OR  NOTE.  40 

one  partner,  which  cannot  be  treated  as  the  indorsement 
of  the  firm,  will  not  render  the  firm  liable,  notwithstand- 
ing the  money  thereby  raised  be  applied  to  partnership 
purposes  ;(</)  yet  it  is  clear  that  a  firm,  consisting  of 
several,  may  carry  on  business  in  the  name  of  an  indi- 
vidual partner,  and  then  the  whole  firm  will  be  bound 
by  acts  done  by  him  as  representing  the  firm.(r)  Thus, 
where  one  partner  of  a  firm  in  England  proceeded  to  a 
foreign  country  for  the  purpose  of  establishing  a  branch 
concern,  to  be  carried  on  in  his  individual  name,  with 
strict  instructions  that  the  names  of  the  firm  should  ap- 
pear as  little  as  possible  on  paper,  and  that  no  greater 
than  a  stated  sum  should  at  any  time  be  risked  on  part- 
nership speculations;  he,  however,  against  those  in- 
structions, entered  into  risks  greatly  exceeding  that 
sum,  and  indorsed  bills  in  the  course  of  such  dealings  in 
his  own  name,  the  firm  in  England  subsequently  sanc- 
tioning them,  and  the  transaction  being  for  the  benefit 
of  the  partnership ;  it  was  determined  that  such  indorse- 
ments were  to  be  deemed  the  indorsements  of  the  firm, 
in  the  name  used  by  them  for  the  purposes  of  the  foreign 
business,  and  that  they  were  liable  upon  those 
*bills.(s)  And  it  is  indisputable,  that  in  every  [  *41  ] 
case  in  which  a  firm  becomes,  through  the  in- 
strumentality of  a  single  member,  a  party  to  a  negotia- 
ble security,  and  the  transaction  which  occasioned  the 
giving  the  security  was  bona  fide^  and  fairly  referable  to 
the  partnership  concerns,  the  act  of  the  single  partner, 
in  pledging  the  joint  credit,  will  have  a  conclusive  bind- 
ing operation  upon  all  the  partners  collectively.  And 
cases  exist  in  which  one  partner  may  enter  into  a  joint 
engagement  in  a  transaction  not  relating  to  the  partner- 
ship, and  it  will  be  binding  upon  the  firm  if  it  have  re- 
ceived either  their  express  or  implied  sanction.  In  many 
cases  of  partnership  it  is  frequently  necessary  for  its 
salvation,  that  the  private  demand  of  one  partner  should 

{q)  Ex  parte  Emly,  1  Rose,  61.     Emly  v.  Lye,  15  East,  7. 
(r)  Ex  parte  Bolitho,  Buck.  100. 

(s)  South  Carolina  Bank  v.  Case,  8  B.  &  C.  427.  S.  C.  2  Man.  & 
Ryl.  459. 


41  ONE  PARTNER  BINDING 

be  satisfied  at  the  moment,  as  the  ruin  of  the  one  might 
affect  the  other  partners ;  and  therefore  the  firm,  to  avert 
such  a  posssible  evil,  would  rather  allow  the  individual 
partner  to  liberate  himself  by  dealing  with  it,  than  ex- 
pose themselves  to  the  consequences  which  might  ensue 
from  their  non-acquiescence.(/)  In  these  cases  the  joint 
liability  depends  upon  the  degree  of  evidence  adduced 
to  prove  the  authority,  the  mere  relation  of  partners  not 
of  itself  being  sufficient  to  confer  upon  each  the  power 
of  binding  the  firm  in  separate  transactions.(w)  The 
nature  of  the  entries  in  the  books,  or  the  appropriation 
of  the  money  to  the  partnership,  or  to  a  separate  ac- 
count, or  the  privity  and  silence  of  the  firm,  would  be 
evidence  of  an  authority  delegated  to  the  single  part- 
ner.(i;)  Previous  authority  is  not  the  only  criterion  by 
which  to  determine  the  joint  liability  of  the  partners  un- 
der such  circumstances :  subsequent  approbation  being, 
for  this  purpose  of  equal  efficacy ;  for  a  strong  case  of 
subsequent  approbation  by  all  the  partners  raises  an  in- 
ference of  their  previous  positive  authority  having  been 
given  to  the  particular  partner  to  sign  the  partnership 
name  to  a  bill,  or  to  negotiate  it,  and  will  subject  the 
partners  to  liability  in  a  transaction  where  they  would 

not  have  been  chargeable  without  such  subsequent 
[  *42  ]  assent.(t^)  In  instances  of  this  description,  the*act 

of  the  partner  must  be  ascribed  rather  to  his 
character  of  agent  than  of  partner;  and,  the  agency 
being  established,  of  course  the  partnership  would  be  as 
firmly  bound  by  his  separate  acts  as  they  would  have 
been  had  they  expressly  and  personally  concurred  in 
them.  But  where  no  such  agency  exists,  and  a  joint 
security  is  pledged  in  a  transaction  unconnected  with 

{t)  Per  Lord  Eldon,  Ex  parte  Bonbonus,  8  Vesey,  580. 

{u)  Ex  parte  Peele,  6  Vesey,  600.  *'  If  a  man  gives  a  partnership 
engagement,  in  the  partnership  name,  with  regard  to  a  transaction  not 
in  its  nature  a  partnership  transaction,  he  who  seeks  the  benefit  of  that 
engagement  must  be  able  to  say,  that  though  in  its  nature  not  a  part- 
nership transaction,  yet  there  was  some  authority  beyond  the  mere  cir- 
cumstance of  partnership,  to  enter  into  that  contract,  so  as  ta  bind  the 
partnership."     Per  Lord  Eldon,  Id.  Ibid. 

(u)  Ex  parte  Bonbonus,  sitpra. 

(w)  Id.  Ibid. 


THE  FIRM  BY  BILL  OR  NOTE.  42 

the  partnership,  if  it  be  manifest  to  the  person  advancino- 
money  upon  it  that  it  is  sent  into  circulation  upon  the 
separate  account  of  the  individual  partner,  and,  conse- 
quently, that  it  is  against  good  faith  that  he  should  in 
such  a  case  pledge  the  firm,  it  must  be  shown  that  he 
had  authority  to  bind  them ;  for  the  law  does  not  imply 
an  authority  in  individual  partners  over  the  joint  fund, 
except  in  matters  which  affect  the  partnership  con- 
cerns.(.r')(l)  In  the  hands  of  a  person  aware  of,  and 
collusively  partaking  in  the  fraud  committed  upon  the 
partnership  by  the  individual  partner  pledging  the  firm 
in  a  separate  transaction,  the  joint  security  would  not 
be  available.  In  such  a  case  it  would  be  the  same  as  if 
the  debtor  had  pledged  the  fund  of  a  stranger  for  his 
own  debt,  on  his  own  assertion  that  he  had  authority  to 
do  so :  if  he  had  such  authority,  the  pledge  would  be 
good;  but  the  creditor  would  take  it  at  the  peril  of  prov- 
ing that  authority,  if  it  were  afterwards  denied.  The 
power  possessed  by  one  partner  of  binding  his  co-part- 
ners in  joint  transactions,  without  their  knowledge  or 
consent,  bears  in  many  instances  sufficiently  hard  upon 
them ;  but  it  would  be  carrying  their  liability  for  each 
other's  acts  to  a  most  unjust  extent  if  it  were  suffered 
that,  in  a  separate  transaction,  one  partner  could  pledge 
the  credit  of  the  firm.  This  subject  has  frequently  fallen 
under  judicial  consideration,  and  the  doctrine  stated  has 
uniformly  received  the  sanction  and  support  of  the  dif- 
ferent judges  before  whom  it  has  been  questioned.  It  is 
indeed  indisputably  settled,  that  if  a  creditor  of  one  of 

(x)  Ex  parte  Agace,  2  Cox's  Ca.  312.  In  transactions  unconnected 
with  the  joint  trade,  no  liability  will  be  entailed  upon  a  dormant  part- 
ner, where  his  responsibility  was  not  originally  regarded,  and  the  fact 
of  his  being  a  partner  was  unknown  at  the  lime  the  claim  arose.  There- 
fore, where  one  partner  accepted  a  bill  in  the  name  of  his  firm,  but  not 
in  a  partnership  transaction,  it  was  held  that  an  indorsee  could  not  main- 
tain an  action  on  such  acceptance  against  a  dormant  partner,  whose 
name  did  not  appear,  and  who  was  not  known  to  be  a  partner,  nor  the 
bill  taken  on  his  credit.  Lloyd  v.  Ashby,  2  Carr.  &  Pa.  N.  P.  C.  138. 


(1)  Livingston  v.  Roosevelt,  4  Johns.  Rep.  251.  Lansing  v.  Gaine 
et  al.  2  Johns.  Rep.  300. 

8 


43 


ONE  PARTNER  BINDING 


the  partners  collude  ^vith  him  to  take  payment  or  se- 
curity for  his  individual  debt  out  of  the  partner- 
[  '*43  ]  ship  funds,  knowing  at  the  time  that  it  is  *with- 
out  the  consent  of  the  other  partner,  it  is  fraudu- 
lent and  void.(7/)(l)  Therefore,  if  a  man,  who  has 
dealings  with  one  partner  only,  draws  a  bill  of  exchange 
upon  the  partnership  on  account  of  those  dealings,  he 
is  guilty  of  a  fraud ;  and,  in  his  hands,  the  acceptance 
made  by  the  partner  on  the  behalf  of  the  firm  would  be 
void.(z)(2)  So,  where  a  bill  was  drawn  by  one  partner, 
in  the  joint  name,  to  the  order  of  his  separate  creditor, 
it  was  held  that  the  latter  could  not  recover  in  an  action 
upon  the  bill  against  the  firm,  notwithstanding  that  he 
had  not  notice  of  the  non-concurrence  of  the  co-partner, 
and  was  not  apprized  that  the  consideration  would  be 
disputed. (a)  (3)  And  where  in  an  action  by  an  indorsee 
against  a  firm,  it  appeared  that  the  bill  upon  which  he 
sued  was  indorsed  by  one  partner  in  the  partnership 
name,  and  that  the  indorsee,  at  the  time  he  discounted 

{y)  Per  Lord  Elhnborough.  Swan  v.  Steel,  7  East,  210.  S.  C.  3 
Smith,  109. 

{z)  Wells  V.  Masterman,  2  Esp.  N.  P.  C,  731.  In  Ex  parte  Gould- 
ing,  in  the  matter  of  O'Neil  and  Martin,  bankrupts,  before  the  Vice 
Chancellor,  sittings  after  Trinity  Term,  1826,  a  question  arose,  whether 
the  joint  estates  of  the  bankrupts  was  liable  for  a  bill  accepted  by  one 
of  them,  in  the  name  of  the  firm,  but  for  his  own  individual  debt,  and 
without  the  knowledge  of  his  co-partner.  The  Vice  Chancellor,  on 
account  of  the  importance  of  the  question,  took  time  to, consider  it,  and 
afterwards  said,  "  I  am  of  opinion,  that  where  one  partner  gives  an 
acceptance  in  the  name  of  the  firm  in  satisfaction  of  his  own  private 
debt,  and  without  the  knowledge  of  his  co-partner,  such  an  acceptance 
cannot  hind  the  joint  estate."     MSS.  S.  C.  2  Glyn  &  James.  118. 

(a)  Green  v.  Deakin,  2  Stark.  N.  P.  C.  347.  In  Henderson  v.  Wild, 
2  Campb,  561.  Lord  Ellenhorough  held,  that  if  two  persons  are  in 
partnership,  and  a  third  individual  owes  them  a  sum  of  money  on  the 
partnership  account,  a  receipt  for  this  given  by  one  partner  upon  setting 
off  a  private  debt  due  from  himself  to  that  third  person,  will  be  a  bar 
to  an  action  by,  the  partners  for  the  debt  due  to  the  partnership.  See 
Skaife  v,  Jackson,  3  B.  &  C.  421. 


(1)  Per  Spkncer,  C.  J.,  4  Johns.  Rep.  269,  270,  citing  Swan  v. 
Steel,  and  Ex  parte  Bonbonus,  8  Ves.  jun.  540. 

(2)  Brown  v.  Buncanson  and  Bay,  4  Har.  &  McHen.  Rep.  350. 

(3)  Whitaker  v.  Broivn,  1 1  Wend.  75. 


THE  FIRM  BY  BILL  OR  NOTE.  43 

it,  was  informed  that  the  transaction  was  to  be  conceal- 
ed from  the  other  partners,  it  was  ruled  that  he  could 
not  successfully  sue  the  partnership ;  because  the  trans- 
action itself  indicated  that  the  money  was  for  the  sepa- 
rate partner's  own  use,  and  was  not  intended  to  be 
applied  to  partnership  purposes.(&)  Upon  the  same 
principle  it  is,  that  where  one  partner  clandestinely 
draws  and  accepts  a  bill  in  the  name  of  the  firm,  partly 
for  a  demand  which  the  payee  has  against  the  partner- 
ship, and  partly  for  the  single  partner's  own  debt,  the 
payee,  in  an  action  against  all  the  partners,  can  only 
recover  upon  the  former  part  of  the  consider- 
ation, though  money  be  paid  into  *court  on  the  [  *44  ] 
count  on  the  bill.(c)  And  if  a  partnership  nego- 
tiable security  be  given  by  one  partner  to  his  creditor  in 
discharge  of  an  antecedent  debt  due  from  himself  alone, 
the  presumption  is,  that  the  firm  is  not  responsible,  because 
the  separate  creditor  must  be  considered  as  being  ad- 
vertised, in  the  nature  of  the  transaction,  that  it  could 
not  be  intended  to  be  a  partnership  proceeding.(rf)(l) 

(6)  Arden  v.  Sharp,  2  Esp.  N:  P.  C.  523. 

(0)  Barber  v.  Backhouse,  Peake's  N.  P.  C.  61. 

(d)  Ex  parte  Bonbonus,  8  Vesey,  540. 


(I)  Bairdw.  Cochran  et  al.  4  Serg.  &;  Rawle,  397.  Chazourne  v. 
Edwards  et  al.  3  Pick.  Rep.  5.  Ex  parte  Goidding,  2  Glyn  &  Jam. 
118.  Livingston  v.  Hastie  et  al.  2  Caines'  Rep.  246.  Lansing  v. 
Caine  et  al.  2  Johns.  Rep.  300.  Livingston  v,  Roosevelt,  Dubois  v. 
Roosevelt,  4  Johns.  Rep.  251,  262,  note.  Davenport  v.  Runlett,  3 
New  Hamp.  Rep.  386.  Blair  Miller  against  Douglass,  14  Fac.  Coll. 
154.  2  Bell's  Comm.  616,  n.  2.  See,  also,  Poindexter  v.  Waddxj, 
6  Munf.  418.  Robertson  v.  Mills,  2  Har.  &  Gill.  98.  Foster  v.  .An- 
drews, 2  Penns.  Rep.  160.  Stearns  v.  Burham,  4  Greenl.  Rep.  84. 
Flagg  V.  Upham,  10  Wend.  Rep.  147.  In  an  action  against  partners 
on  a  promissory  note  made  by  one  of  them  in  the  name  of  the  firm, 
the  confessions  of  the  partner  who  made  the  note  are  not  admissible  to 
prove  it  to  have  been  a  partnership  transaction.  Tuttle  v.  Cooper,  5 
Pick.  Rep.  414.  And  though  a  partner  be  present  and  hear  the  arrange- 
ment respecting  tlie  indorsement  of  a  note  for  the  separate  debt  of  the 
other  partner,  he  will  not  be  bound — his  consent  must  be  proved  not 
presumed.  Mercien  v.  Jindrus,  10  Wend.  461.  And  taking  the  pro- 
perty of  the  firm,  upon  a  purchase  of  one  of  the  partner.",  to  satisfy 
his  private  debt,  renders  the  party  liable  to  die  firm  for  goods  sold  and 
delivered.     Dob  v.  Halsey,  16  Johns.  Rop.  34.     Nor  can  a  debt  due 


44 


ONE  PARTNER  BINDING 


Nor  is  this  rule  confined  in  its  operation  to  the  miscon- 
duct of  a  single  partner ;  it  applies  as  forcibly  in  a  case 
in  which  the  members  of  an  old  firm  pledge  the  name  of 
a  newly  admitted  member,  jointly  with  tlieir  own,  to  the 
discharge  of  a  debt  contracted  anterior  to  the  admission 
of  that  partner.  In  such  a  case,  the  members  of  the  old 
firm  cannot,  without  the  privity  of  the  new  partner,  ac- 
cept a  bill,  in  the  style  of  the  new  partnership,  for  a  debt 
which  was  due  from  the  old  firm,  so  as  to  render  such 
acceptance  available  against  the  incoming  partner  in 
the  hands  of  a  creditor  who  knowingly  takes  such  a 
security;  for,  if  this  were  allowed,  it  would  only  be 
conceding  to  two  or  more  partners  that  which  is  denied 
to  a  single  partner,  namely,  the  power  of  pledging  the 
joint  fund  for  their  individual  debts.(e)  And  wherever  a 
bill  is  drawn  or  indorsed  by  an  individual  partner  in  the 
joint  name  under  circumstances  which  evidently  disclose 
that  covin  existed  between  that  partner  and  the  holder 
of  the  security,  to  charge  the  other  partners  without 
their  knowledge  or  consent,  either  expressed  or  implied, 
for  the  private  advantage  of  the  parties  to  such  fraudu- 
lent agreement,  it  is  void  in  the  hands  of  the  covinous 
holder;  and  its  validity  may  be  impeached,  not  only  in 
an  action  by  such  holder  against  the  partnership,  but  it 
may  be  questioned  in  any  action  instituted  by  him 
against  other  parties  to  the  bill ;  for  the  bill  being  void, 
it  cannot  be  made  the  foundation  of  an  action,  and, 
if  the   holder  were  allowed  to  put  it  in  suit  against 

(e)  Shirreff  v.  Wilkes,  1  East,  48.  That  one  partner  cannot  pledge 
the  security  of  another  for  his  own  private  debt,  appears  to  have  been 
expressly  decided  in  two  cases  referred  to  by  Mr.  East  in  a  note  to  the 
foregoing  decision,  viz.  in  Gregson  and  others  v.  Hutton  and  another, 
B.  R.  E.  22  Geo.  3,  and  in  Marsh  ?;.  Vansommer  and  another,  London 
Sittings  after  Mich.  T.  1786,  cor.  BiiUer,  J. 


to  a  Jirni  be  discharged  by  one  of  the  partners  applying  it  in  payment 
of  an  individual  debt  owing  by  him  to  the  debtor  of  the  firm,  unless 
done  with  the  knowledge  and  approbation  of  the  other  partners. 
Everns^him  v.  Ensworlh,  7  Wend.  326.  The  case  of  Kirkpatrick  v. 
Turnbidl  et  al.  Addis.  Rep.  259,  seems  to  have  been  hastily  decided, 
and  cannot  be  considered  as  authority. 


THE  FIRM  BY  BILL  OR  NOTE.  45 

Other  parties,  the  loss  would  eventually  fall  upon  the 
partnership ;   for  its  amount  must,  in  some  way 
or  other,  be  allowed  in  account  by  *them,  or  the  [  *45  ] 
defendant,  ajjainst  whom  a  verdict  mi<i^ht  be  ob- 
tained,  would  have  his  remedy  over  against  the  partner- 

ship.(/)(i) 

But,  although  a  joint  security,  given  by  an  individu  d 
partner  for  his  separate  debt,  or  in  a  transanction  which 
is  foreign  to  the  partnership,  is  not  binding  upon  the 
firm,  when  it  is  put  in  suit  by  the  party  who  is  privy  to 
the  misapplication,  yet,  if  such  a  security  be  given  to  a 
person  who,  ignorant  of  the  circumstances  for  which  it 
was  manufactured,  and  of  the  purposed  application  of 
its  produce,  takes  it  on  the  credit  of  the  partnership 
name ;  or  if,  being  given  to  one  who  was  instrumental 
to  the  fraud  committed  on  the  partnership,  it  be  by  him 
afterwards  negotiated,  and  get  into  the  possession  of  a 
bona  Jide  holder,  the  security  may,  in  either  case,  be 
enforced  against  the  partners  collectively.  Third  per- 
sons, who  have  no  knowledge  of  the  real  transaction, 
and  who  are  free  from  all  imputation,  are  not  affected 
by  the  original  fraudulent  agreement,  because  they  have 
a  right  to  presume  that  the  acting  partner  was,  in  the 
particular  case,  invested  with  authority  from  his  co- 
partners to  give  circulation  to  the  joint  security.  The 
same  observation  applies  to  the  person  who  takes  a  se- 
curity immediately  from  the  partner  who  misconducts 
himself.  If  there  be  nothing  in  the  nature  of  the  trans- 
action itself,  from  which  it  can  fairly  be  inferred  that  he 
was  conscious  at  the  time  of  the  misapplication,  or  if 

(/)  Ridley  v.  Taylor,  13  East,  175.  See,  also,  Hope  v.  Cust,  cited 
1  East,  53. 


(1)  Tiierefore,  a  friendly  indorser  would  not  be  liable,  thougli  he  did 
not  know  the  note  was  not  given  for  a  partnership  debt;  for  if  tlie  in- 
dorsee recovered  against  him,  he  would,  being  an  innocent  payee,  and 
unacquainted  with  the  circumstances  under  which  the  note  was  issued, 
recover  against  the  partners  in  an  action  for  money  paid,  and  by  cir- 
cuity the  partners  would  be  at  last  rendered  liable.  Livingston  v.  Has- 
tie,  2  Caines'  Rep.  246.  Chazourne  v.  Edwards  et  aL3  Pick.  Rep. 
5.     Williams  v.  JFalbridge,  3  Wend.  415. 


45 


ONE  PARTNER  BINDING 


there  be  not  any  such  crassa  negltgentia  on  his  part  in 
not  inquiring  whether  the  one  partner  with  whom  he 
deals  is  authorised  to  dispose  of  the  joint  security  as  his 
own,  as  to  render  the  transaction,  on  that  account,  frau- 
dulent, he  has  a  perfect  right  to  call  upon  the  partner- 
ship to  fulfil  the  engagement  for  whiich  their  credit  has 
been  pledged  by  the  individual  partner.  If  the  doctrine 
were  different,  no  faith  or  reliance  could  be  placed  upon 
partnership  securities,  unless,  indeed,  it  were  incumbent 
upon  a  person  receiving  an  apparently  joint  negotiable 
instrument,  to  apply  to  each  of  the  parties  whom  it  pur- 
ports to  affect,  to  know  whether  he  assented  to  its  nego- 
tiation, or  otherwise  that  it  should  be  void.  Such  an 
obligation  would,  in  theory,  be  as  strange  and  novel  as 
it  would,  in  practice,  be  in  most  cases  impracticable,  and 
in  every  case  a  great  impediment  to  commerce.  The 
law  has  therefore  declared,  that  instruments  affecting  to 

charge  a  partnership,  but  which  are  sent  into  the 
[  *46  ]  world  by  an  individual    *  partner   for   his   own 

personal  benefit,  are  invalid  only  in  the  hands 
of  the  party  who  is  cognisant  of,  and  privy  to,  the 
abuse  of  the  joint  name,  and  who  is  consequently  a  par- 
taker in  the  fraud  attempted  to  be  practised  upon  the 
partnership.  Thus  a  bill  accepted  by  one  partner  in 
favour  of  a  person  with  whom  he  has  separate  dealings 
would,  as  we  have  seen,(^)  be  inoperative  against  the 
partnership,  when  payment  of  it  is  attempted  to  be  en- 
forced by  the  separate  creditor  himself,  but  it  would  be 
otherwise  in  the  case  .of  his  bo7ia  fide  indorsee.  In  the 
hands  of  the  latter,  the  acceptance  of  one  partner,  though 
fraudulently  made,  binds  the  firm,  because  he  is  ignorant 
of  the  circumstances  under  which  the  security  was 
created  and  circulated,  and  takes  it  on  the  faith  and 
credit  of  the  partnership  name.(/i)(l)     So,  if  one  part- 


(g-)  See  ante,  p.  42. 

(A)  Per  Lord  Kenyan,  Wells  v.  Masterraan,  2  Esp.  N.  P. 


731. 


(1)  Per  Kent,  J.,  Livingston  v.  Roosevelt,  4  Johns.  Rep. 
Per  LivijfGSTON,  J.,  Livingston  v.  Hastie,  2  Caines'  Rep.  250. 
Poy  et  al.  v.  Johnson,  2  Peters'  Sup.  C.  Rep.  186. 


279. 
Le 


THE  FIRM  BY   BILL  OR  NOTE.  46 

ner  indorse  a  bill  in  the  partnership  name,  and  send  it 
into  circulation,  and  it  gets  into  the  hands  of  a  bona  fide 
holder,  who  takes  it  on  the  credit  of  the  partnership 
name,  and  is  ignorant  of  the  circumstances,  though  in 
fact  the  bill  was  first  discounted  for  that  partner's  own 
use,  the  partnership  is  liable.(i)(l)  For,  in  the  ordinary 
course  of  commercial  transactions,  as  upon  discount,  it 
would  be  monstrous  to  hold,  that  one  partner,  borrow- 
ing money  upon  a  bill  of  exchange,  by  which  he  pledges 
the  partnership  to  the  repayment,  cannot  affect  the  firm 
merely  because  the  money,  ^vhen  raised,  is  applied  by 
the  single  partner  to  his  own  use,  the  discounter  at  the 
time,  having  no  knowledge  that  it  was,  or  was  intended 
to  be,  a  separate  transaction.(^)  On  the  same  principle 
of  want  of  collusion,  the  application  by  one  partner  of 
a  joint  bill  or  note,  in  discharge  of  his  individual  debt, 
does  not  under  all  circumstances  necessarily  invalidate 
it  as  a  security  against  the  firm.  For  instance,  the 
members  of  a  banking  firm  would  be  bound  to  honour 
their  notes,  in  the  hands  of  a  person  who  received  them 
from  a  single  partner  in  payment  of  his  own  separate 
debt  J  because  the  creditor,  having  no  knowledge  on  the 
subject,  might  rationally  imagine,  that  the  notes  had 
been  previously  sent  into  circulation,  and  had  returned 
into  the  possession  of  his  debtor  as  his  own  individual 
property.(/)  And  it  has  been  decided,(m)  that  if 
a  partnership  security  be  indorsed  *by  one  part-  [  *47  ] 
ner  to  his  own  separate  creditor,  against  whom, 
neither  actual  covin  in  the  transaction,  nor  any  thing 

(i)  Arden  v.  Sharp,  2  Esp.  N.  P.  C.  524. 
(k)  Ex  parte  Bonbonus,  8  Vesey,  540. 
(/)  Ridley  v.  Taylor,  13  East,  175.  .flrg. 
\m)  Ridley  v.  Taylor,  supra. 


(I)  Bank  of  Kentucky  v.  Brooking  et  al.  2  Littel's  Rep.  45,  46. 
New  Fork  F.  I.  Co.  v.  Bennett,  5  Conn.  Rep.  574.  But  if  the  holder, 
who  receives  the  security,  be  ignorant  of  the  circumstances  through 
gross  negligence,  he  cannot  enforce  the  security  against  the  firm.  Ibid. 
And,  in  such  a  case,  a  dormant  partner  would  not  be  liable,  as  the 
security  could  not  be  taken  on  the  credit  of  his  name.  Lloyd  v.  Ashby 
et  al.  2  Carr.  &i  Payne,  138. 


47 


ONE  PARTNER  BINDING 


which  is  sufficient  to  warrant  a  conclusion  of  knowledge 
of  the  want  of  authority  of  the  individual  partner  ap- 
pears, the  firm  will  be  bound  by  the  indorsement;  and 
especially  in  a  case  in  which,  if  covin  or  want  of  autho- 
rity really  did  exist,  the  firm  are  in  a  situation*  clearly 
and  positively  to  establish  it,  and  they  neglect  to  do  so. 
In  the  absence  of  such  proof,  the  fair  and  irresistible 
presumption  is,  that  the  partner  in  possession  of  the 
security  had,  for  some  valuable  consideration,  or  in  vir- 
tue of  some  arrangement  with  his  co-partners,  become 
its  proprietor,  so  as  to  be  authorised  to  deal  with  it  as 
his  own.(l)  And  this  rule  prevails,  although,  by  the 
terms  of  the  copartnership  articles,  the  partners  are  pro- 
hibited from  circulating  any  bills  or  notes,  if  the  holder 
of  a  joint  security  were  ignorant  of  that  circumstance 
at  the  time  he  received  the  same ;  but  on  proof  of  such 
restrictive  clause,  and  that  the  bill  was  issued  by  one 
partner  without  the  concurrence,  and  in  fraud  of  the 
others,  the  holder  must  show  that  he  gave  value  for 
it.(w)(2)  Neither  is  it  alone  in  cases  of  the  fraudulent 
misconduct  of  partners  that  a  joint  responsibility  may 

(n)  Grant  v.  Hawkes,  Chitty  on  Bills,  (5th  ed.)  42,  n. 


(1)  The  rule  in  A^eiv  York  is  different  from  that  established  in  /Rid- 
ley V.  Taylor.  'J'he  separate  creditor,  who  has  obtained  the  partner- 
ship paper  for  the  private  debt  of  one  of  the  partners,  is  required  to 
show  the  assentof  tlie  whole  tirm  to  be  bound,  and  the  burden  of  avoid- 
ing such  security  is  not  tlirown  upon  ihe  firm,  by  requiring  them  to 
prove,  that  the  act  was  covinous  on  the  part  of  tiie  partner  for  whose 
private  debt  the  paper  of  the  firm  was  given.  Dob  v.  Huhey,  16  Johns. 
Rep.  38,  39.  Laverly  \.  Burr,  1  Wend.  Rep.  531.  Prima  facie, 
however,  a  note  made  by  one  partner  in  the  name  of  the  firm,  will  be 
intended  to  be  given  in  the  regular  course  of  partnership  dealings,  and 
it  is  matter  of  defence,  that  it  was  taken  from  one  of  tlie  partners  for 
what  was  known  at  tlie  time  to  be  his  separate  debt.  Daly  v.  Bates, 
11  John*.  Rep.  544.  But  this  rule  is  limitated  to  cases  where  the  sig- 
nature or  other  circmnslances  indicate  a  partnership  concern  ;  and 
therefore  where  a  partnership  was  carried  on  in  the  nanie  of  an  indi- 
vidual, it  was  held,  that  a  note  in  the  common  form,  signed  by  such 
individual,  did  noi  prima  facif  bind  his  co-partners  ;  and  that,  upon  the 
question  whether  it  was  given  for  the  use  of  the  co-parlnership,  the 
burden  of  proof  was  on  the  holder.  Maimfaclnrers  and  Mechanics 
Bank  v.  Winship,  5  Pick.  Rep.  11. 

(2)  Bank  of  Kentucky  v.  Brooking  et  al.  2  Littel's  Rep.  41. 


THE  FIRM  BY  BILL  OR  NOTE.  47 

be  brought  upon  a  firm ;  for  a  bill  which  has  been  drawn 
in  blank  by  one  partner,  and  has  been  by  him  delivered 
to  a  clerk,  to  be  filled  up  in  the  ordinary  course  of  busi- 
ness, will,  if  misapplied  by  the  clerk,  be  binding  upon 
the  firm  in  the  hands  of  a  party  whose  title  cannot  be 
impeached.  Thus,  Mhere  one  of  three  partners  drew  a 
bill  of  exchange,  in  blank,  in  the  name  of  the  partner- 
ship firm,  payable  to  their  order,  and  delivered  it,  in- 
dorsed, to  a  clerk  to  be  filled  up  for  the  use  of  the  firm, 
as  the  exigences  of  business  might  require,  according  to 
their  course  of  dealing,  and  the  drawer  dying,  the  sur- 
viving partners  assumed  a  new  firm ;  the  clerk  having 
afterwards  filled  up  the  bill,  inserting  a  date  prior  to  the 
death  of  the  drawer,  and  sent  it  into  circulation,  it  was 
held,  that  the  surviving  partners  were  hable  to  a  bona 
fide  indorsee,  although  no  part  of  the  value  came  to 
their  hands.(o)  The  rule,  indeed,  is  universal,  that 
V  herever  there  is  an  absence  of  collusion  or  privity  on 
the  part  of  the  holder,  who  has  given  value  for  the  bill 
or  security  he  seeks  to  enforce  against  the  firm, 
it  is  no  impeachment  of  his  right,  to  *show  an  [  *48  ] 
original  fraudulent  misapplication  of  the  security, 
either  by  a  partner  or  a  servant,  because  the  innocent 
partners  having  clothed  the  particular  partner  or  their 
servant  with  an  apparent  authority,  it  is  more  consonant 
to  justice  that  they  should  suffer,  than  that  the  bona  fide 
holder,  who  relied  upon  the  joint  responsibility,  should 
sustain  the  loss.(l)  Nor  does  it  in  any  degree  affect 
the  question,  as  to  joint  hability,  that  the  party,  after 
having  taken  and  given  value  for  the  security,  discovers 
the  misappropriation  of  the  produce :  if  the  security  be 

(o)  Usher  V.  Daiincey,  4  Campb.  97.     See  Russell  v.  Langstaffe, 
Dougl.  514.     Snaith  v.  Mingay,  1  Mau.  &  Selw.  87. 


(1)  In  an  action  against  a  firm,  upon  a  negotiable  note  made  by  one 
partner  in  the  name  of  the  firm,  and  indorsed  by  the  payee  to  the  plain- 
tiff, the  other  partners  have  a  right  to  show  that  the  note  was  fraudu- 
lent in  its  inception,,  or  was  fraudulently  put  into  circulation,  \yhich 
being  established,  will  throw  the  burden  of  proof  on  the  plaintiff  to 
show,  that  he  came  to  the  note  fairly  and  without  knowledge  of  the 
fraud.     Alonroe  v.  Cooper,  5  Pick.  Rep.  412. 

9 


48 


ONE  PARTNER  BINDING 


taken,  in  good  faith,  without  a  knowledge  at  the  time, 
of  the  fraud  contemplated  by  the  partner,  no  subse- 
quently acquired  knowledge  of  his  misconduct  in  giving 
the  security  can  disaffirm  the  act.(p)(l)  Where  per- 
sons are  partners  in  a  particular  and  single  transaction 
only,  and  not  general  partners,  they  are  not  liable,  even 
to  a  bona  fide  holder,  on  a  bill  issued  by  one  of  them  in 
relation  to  a  different  concern.(9)  (2) 

It  has  been  ruled  by  Lord  Ke?iyo?i,(r)  that  if  different 
firms,  consisting  partly  of  the  same  members,  be  carried 
on  in  the  same  name,  a  bill  of  exchange,  upon  which  the 
members  of  one  of  the  firms  are  liable,  is  a  valid  security 
against  the  members  of  any  of  the  firms  in  the  hands  of 
the  holder,  without  notice  that  it  was  on  account  of  any 
particular  partnership  concern.  This  decision  must, 
however,  be  understood  with  some  limitation.  The 
holder  may  have  a  right  to  elect  against  which  of  the 
partnerships  he  will  enforce  his  claim,  but  he  cannot 
hold  all  of  them  liable.  This  appears  to  have  been  the 
conclusion  to  which  the  House  of  Lords  came  in  a  re- 
cent case.(s)  It  was  there  decided,  that  where  several 
partnerships,  consisting  of  different  individuals,  carry  on 
business  under  the  same  firm,  and  enter  into  negotiable 
securities  under  the  same  signature,  the  holder  of  such 
securities  has  a  right  to  select  which  of  those  partner- 
ships he  chooses  for  his' debtor. 

On  the  subject  of  negotiable  instruments  it  remains  to 
be  observed,  that  even  in  transactions  in  which  all  the 


(p)  Swan  V.  Steel,  7  East,  210. 
(q)    Williams  v.  Thomas,  6  Esp.  N.  P.  C.  18. 
(r)    Baker  v.  Charlton,  Peake  N.  P.  C.  79. 

(s)    McNair  v.  Fleming,  Mont,  on  Part.  32,  n.  (r.)     Ex  relatione 
Sir  Samuel  Romilly. 


(1)  See  what  is  said  by  Spencer,  J.,  4  Johns.  Rep.  269,  270. 

(2)  It  is  matter  of  legal  defence  only,  in  such  a  case  that  a  note  has 
been  given  by  one  partner  in  the  name  of  the  firm  for  a  consideration 
not  connected  with  partnership  transactions;  and  if  a  judgment  at  law 
be  obtained  against  the  firm,  without  defence,  equity  will  not  afl[brd 
relief,  unless  it  be  shown  that  defence  at  law  was  impracticable.  Sneed 
V.  Coyle,  4  Litt.  Rep.  162. 


THE  FIRM  BY  BILL  OR  NOTE.  49 

partners  are  interested,  the  authority  of  one  partner  to 
make,  draw,  accept,  or  indorse  promissory  notes 
or  bills  of  exchange  in  the  joint  *name  is  only  [  *49  ] 
implied,  and  may  therefore  be  rebutted  by  ex- 
press previous  notice,  to  the  party  taking  a  joint  security 
from  one  partner,  of  his  want  of  authority,  or  that  the 
others  will  not  be  liable  upon  it.(l)  Such  a  power  is 
not  indispensably  essential  to  the  existence  of  a  partner- 
ship; the  partners  may  stipulate  between  themselves, 
that  it  shall  not  be  exercised :  and  if  a  third  person,  ap- 
prized of  such  a  stipulation,  will  take  a  joint  security,  he 
cannot  sue  the  firm  upon  it,  although  it  were  truly  re- 
presented to  him,  by  the  partner  giving  the  security,  that 
the  money  to  be  advanced  on  it  was  required  for  the 
purpose  of,  and  was  in  fact  applied  in,  liquidating  the 
partnership  debts  ;(2)  much  less  can  he  hold  the  firm 
responsible  on  a  security  so  obtained,  if  he  take  it  in 
defiance  of  a  positive  notice,  previously  given  by  one  of 
the  memfcs,  that  he  will  not  be  answerable  for  any  bill 
or  note  signed  and  negotiated  by  the  others.(^)  (3)  And 
the  power  of  one  partner  to  bind  the  firm  by  a  negotia- 
ble security,  where  it  is  capable  of  being  exercised,  is 
only  co-existent  with  the  duration  of  the  partnership 
itself;  for,  immediately  on  its  dissolution,  the  power 
ceases.(w)  (4)    Therefore,  where  A,  after  the  dissolution 

(/)  Galway  v.  Matthew,  10  East,  264.  S.  C.  1  Camp.  403.  See 
also  Rooth  V.  Quin,  7  Price,  193.  Miniiett  v.  Whitney,  16  Vin.  Abr. 
244.     Ogilvie  v.  Foljambe,  3  Meriv.  65. 

iu)  Wrightson  v.  PuUan,  1  Stark.  N.  P.  C.  375.  And  see  Moody 
V.  king,  2  B.  &  C.  558. 


(1)  Per  Parker,  C.  J.,  Boardman  v.  Gore  et  al.  15  Mass.  Rep. 
339. 

(2)  See  Le  Roy  et  al.  v.  Johnson,  2  Peters'  Sup.  Ct.  Rep.  186. 

(3)  And  it  makes  no  difference  in  such  a  case,  that  the  partner  giv- 
ing the  notice  is  a  secret  partner,  and  that  the  existence  of  the  partner- 
ship is  unknown  to  the  opposite  party.  Leavitt  v.  Peck  et  al.  3  Conn. 
Rep.  124. 

(4)  Per  Curiam,  HacMey  v.  Patrick,  3  Johns.  Rep.  538,  Lansing 
V  Gaine  et  al.  2  Johns.  Rep.  300.  Sandford  v.  Mickles,  4  Johns.  Rep. 
224.  Jones'  Case,  1  McCord's  Cha.  Rep.  170.  Overt.  Rep.  455. 
Foltz  V.  Pourie  et  al.  2  Desaus.  Cha.  Rep.  40. 


49  ONE  PARTNER  BINDING 

of  a  partnership  between  himself  and  B,  accepted  a  bill 
in  the  name  of  the  partnership,  bearing  date  before  the 
dissolution,  Lord  Ellenhorovgh  held  that  an  indorsee, 
who  took  the  bill  without  notice  of  the  dissolution,  could 
not  enforce  it  against  B.(i;)  And  if  a  dissohition  is 
agreed  upon,  a  person  who  knows  of  it  cannot  charge 
the  partnership  with  a  subsequent  acceptance  by  one  of 
the  partners  in  the  partnership  name,  unless  he  can 
prove  that  the  intention  to  dissolve  was  abandoned,  or 
that  the  acceptance  was  for  a  partnership  transaction, 
and  free  from  fraud.(?^;)  So,  although  the  notice  of  dis- 
solution empowers  one  partner  to  receive  and  pay  all 
debts  due  to  and  from  the  partnership,  no  authority  is 
thereby  conveyed  to  such  partner  to  bind  the  firm  by  a 
bill  of  exchange. (:?•)  (1)  And  if,  under  such  circum- 
stances, a  bill  be  drawn  in  the  partnership  name 
[  *50  ]  upon  a  debtor  to  the  firm,  ^'which  bill  the  partner 
who  has  the  arrangement  of  the  affairs  indorses 
ostensibly  on  the  behalf  of  the  firm,  and  gets  it  dis- 
counted for  the  purpose  of  applying  its  proceeds  towards 
liquidating  the  partnership  debts,  and  afterwards  the  bill 
is  dishonoured  by  the  acceptor,  no  action  upon  the  bill 
will  lie  against  the  firm  at  the  instance  of  the  indorsee 
and  discounter — because,  to  involve  the  partners  col- 
lectively, they  should  .all  have  concurred  in  making  the 
indorsement;  neither  can  an  action  be  maintained  against 
all  the  partners  for  money  paid  to  the  use  of  the  part- 
nership.(?/)  Nor,  in  the  case  of  a  dissolution,  does  it 
signify,  whether  the  bill  or  note  negotiated  had  or  had 
not  a  prior  existence.  The  moment  the  partnership 
ceases,  the  partners  become  distinct  persons :  they  are, 
from  that  period,  tenants  in  common  of  all  the  property 
embarked  in  it ;  and  if  any  securities  which  belonged  to 

{y)  Wrightson  v.  Pullan,  supra. 

{w)  Paterson  v.  Zachariah,  1  Stark.  N.  P.  C.  71. 

{x)  Kilgour  V.  Finlayson,  1  H.  Bl.  155. 

\y)  Id.  ibid. 


■  (1)  Martin  v.  Walton  et  al.  1  McCord's  Rep.  46.     Sandford  v. 
Mickles  et  al.  4  Johns.  Rep,  224.  2  Desaus.  Cha.  Rep.  43,  44. 


thp:;  firm  by  simple  contracts.  50 

the  partnership  are  afterwards  sent  into  the  world,  all 
the  partners  must  join  in  giving  effectual  negotiability  to 
them.(a)(l)  It  has  been  doubted  by  Lord  Kenyon^ 
whether  if  an  indorsement  were  actually  made  on  a  bill 
or  note  before  a  dissolution  of  partnership,  but  the  bill 
or  note  were  not  put  into  circulation  until  afterwards, 
the  indorsement  would  be  so  far  valid  as  to  charge  the 
partners  who  were  not  privy  to  the  negotiation  of  the 
instrument.(5)  (2)  But  this  exemption  from  future  lia- 
bihty  is  granted  only  on  the  supposition  that  proper 
means  have  been  taken  to  make  the  disolution  noto- 
rious ;  and  therefore  a  dissolution  will  not  protect  the 
quondam  partners,  if  they  suffer  their  names  to  continue 
on  the  partnership  premises,  and  the  holder  of  the  bill 
or  note  took  it  bona  fide,  and  for  value  and  without 
knowledge  of  the  dissolution.(c) 

It  is  not  however  to  be  supposed,  that  the  power  of 
one  partner  to  bind  his  co-partners  is  confined  solely  to 
the  using  the  name  of  the  partnership  firm,  in  the 
concocting  and  giving  circulation*  to  negotiable  [  *51  ] 
instruments.  Whatever  other  contracts  relate  to 
and  are  identified  with  the  partnership  can  be  enforced 
against  the  firm,  notwithstanding  they  were  singly  en- 
tered into  by  an  individual  partner,  without  the  express 
authority  of  the  others.(3)     Thus,  a  contract  for  the 

(«)  Abel  V.  Sutton,  3  Esp.  N.  P.  C  108.  On  the  same  principle, 
it  has  been  held,  that  after  a  secret  act  of  bankruptcy  committed  by  one 
of  two  partners,  the  other  cannot  by  an  indorsement  in  the  name  of  the 
firm  transfer  the  property  in  a  bill  which  belonged  to  the  firm  before 
the  bankruptcy;  for,  the  partnership  having  ceased  to  exist,  the  solvent 
partner  is  to  be  considered  tenant  in  common  with  the  assignees  of  the 
bankrupt  partner,  and  the  property  in  the  bill  can  only  be  transferred 
by  their  respective  indorsements.  Ramsbottom  v.  Lewis,  1  Campb. 
279. 

ib)  Abel  V.  Sutton,  supra. 

(c)  Williams  v.  Keats,  2  Stark.  N.  P.  C.  290.  Dolman  v.  Orchard, 
2C.  «feP.  104. 


(1)  Per  Curiam,   Sandford  v.  Mickels  et  al.  4  Johns.  Rep.  228. 
Lansing  v.  Gaine  et  al.  2  Johns.  Rep.  300. 

(2)  Woodford  v.  Dorwin,  3  Verm.  Rep.  82. 

(3)  Wins/dp  v.  TTie  Ba7ik  U.  States,  5  Pet.  S.  C.  Rep.  529. 


51  ONE  PARTNER  BINDING 

sale  or  purchase  of  partnership  effects,  is  equally  valid 
and  effectual,  when  made  by  one  partner  on  the  behalf 
of  himself  and  his  co-partners,  as  if  it  were  directly  and 
personally  ratified  and  assented  to  by  all  the  members 
of  the  firm.  Over  the  partnership  stock  one  partner 
may  exercise  the  jus  disponendi^  and  in  the  absence  of 
fraud  on  the  part  of  the  purchaser,  the  sale  will  be  bind- 
ing upon  the  firm.  So  in  the  case  of  purchases,  one 
partner  may  imphcate  the  credit  of  the  firm;  and  if 
there  be  no  collusion  between  him  and  the  seller,  the 
latter  may  resort  to  the  firm,  although  the  goods  pur- 
chased never  formed  an  article  of  joint  stock.  He  who 
acts  is  considered  as  the  authorised  agent  of  the  others; 
trade  could  never  otherwise  be  carried  on  by  more  than 
a  single  individual.  The  power  possessed  by  each  part- 
ner, individually,  of  disposing  of  the  joint  merchandise 
has  been  long  an  admitted  principle  of  law,  and  so  far 
back  as  the  reign  of  King  James  the  First,  it  received  the 
sanction  of  judicial  approbation.  Lamherfs  case(c?)  is 
thus  reported :  "  In  this  case,  it  was  agreed  by  the  court, 
that  the  sale  of  one  partner  is  the  sale  of  them  both ; 
and  therefore,  although  that  one  of  them  selleth  the 
goods  or  merchandiseth  with  them,  yet  the  action  must 
be  brought  in  both  their  names ;  and  in  such  case,  the 
defendant  shall  not  be  received  to  wage  his  law,  that 
the  other  partner  did  not  sell  the  goods  unto  him,  as  is 
supposed  in  the  declaration."  The  existence  of  the 
same  implied  authority  was  recognised  in  a  more  recent 
case,  in  which  Lord  Mansfield  observed,  that  each  part- 
ner has  a  power  singly  to  dispose  of  the  whole  of  the 
partnership  effects; (e)(1)    his  authority  to  do  so  being 

{d)  Godbolt,  244. 

(e)   Fox  V.  Hanbury,  Cowp.  445. 


(1)  Per  Kent,  C.  J.,  Pierson  v.  Hooker,  3  Johns.  Rep.  70,  and 
Livingston  v.  Roosevelt,  4  Johns.  Rep.  277.  Per  Brainerd,  J.,  3Iills 
V.  Barber,  4  Day's  Rep.  430.  La7nb  et  al.  v.  Durant,  12  Mass.  Rep. 
54.  Lyle  v.  Styles,  2  Wash.  C.  C.  Rep.  224.  4  Wash.  C.  C.  Rep. 
234.  See  Law  v.  Ford,  2  Paige's  Cha.  Rep.  310.  One  partner, 
therefore,  may,  in  the  partnership  name,  by  an  instrument  not  under 
seal,  assign  the  partnership  effects  and  credits  in  trust  for  creditors  of 


THE  FIRM  BY  SIMPLE  CONTRACTS.  51 

implied  from  the  nature  of  business.(/)  Indeed,  part- 
ners being  joint-tenants  of  the  partnership  stock,  it  fol- 
lows that  one  may  lawfully  dispose  of  the  whole  interest 
in  it.  So  with  respect  to  purchases ;  a  purchase  by  one 
partner  on  the  joint  account  is,  in  contemplation  of  law, 
a  purchase  by  the  firm,  and  is  equally  binding  and  opera- 
tive against  them,  as  if  all  the  members  collec- 
tively had  concurred  *in  it.(^)(l)  Nor,  as  re-  [*52] 
gards  the  vendor,  can  the  sale  be  impeached  by 
the  firm,  merely  because  it  was  effected  by  the  indi- 
vidual partner,  with  the  fraudulent  intention  of  cheating 
his  co-partners.  With  whatever  view  the  goods  are 
bought,  or  to  whatever  purpose  they  are  applied,  a  sale 
to  one  partner  is,  in  legal  effect,  a  sale  to  the  partner- 
ship, if  the  seller  be  exempt  from  the  imputation  of  col- 
lusion.    Therefo]^e,  where  one  of  two  partners,  with  the 

(/)  Per  Best,  J.,  Barton  v.  Williams,  5  B.  <fe  A.  405. 
(  g)  Hyat  V.  Hare,  Comb.  383. 


the  firm,  such  an  assignment  being  a  transaction  in  the  usual  course  of 
trade.  Harrison  v.  Sterry  et  al.  5  Cranch.  289.  Egberts  v.  Wood, 
3  Paige's  Cha.  Eeports,  517.  Robinson  v,  Croivder  et  al.  4  McCord's 
Rep.  519.  Havens  v.  Hulsey,  5  Paige's  Cha.  Rep.  30,  contra.  See 
Pearpont  et  al.  v.  Graham,  4  Wash.  C.  C.  Rep.  232.  The  decree  in 
Dickinson  v.  Legare  et  al.  1  Desaus.  Cha.  Rep.  537,  decided  in  1797, 
is  right,  as  will  appear  if  the  facts  be  attentively  considered — the  as- 
signment in  that  case  was  made  by  a  partner  who  was  a  prisoner  of 
war,  in  the  country  of  the  captor,  to  an  alien  enemy,  with  whom,  ac- 
cording to  the  case  of  Grisrvold  v.  IVaddington,  16  Johns.  Rep.  438, 
no  valid  contract  can  exist,  and  to  whom  no  promise  can  arise,  by  im- 
plication of  law,  from  any  transaction  had  with  a  citizen  of  this  coun- 
try. Chancellor  Matthews,  who  delivered  the  opinion  of  the  Court, 
rested  the  decision,  however,  upon  want  of  power  in  one  partner,  with- 
out consent  or  privity  of  the  others,  to  make  an  assignment  of  the  part- 
nership effects  to  secure  a  creditor — he  admitted  that  it  was  a  case  of 
the  first  impression,  that  the  books  furnished  ))o  precedent,  [Harrison 
V.  Sterry,  was  decided  in  1809,)  and  after  noticing,  with  some  warmth, 
the  evil  consequences  that  might  arise  from  the  exercise  of  such  a  power 
by  one  partner,  set  aside  the  assignment  as  "  unwarranted  by  any  law, 
or  usage  of  merchants,  as  inequitable  and  nefarious."  It  does  not  ap- 
pear from  the  report,  whether  the  assignment  was  under  seal  or  not; 
but  if  it  had  been  under  seal,  the  question  would  have  been  disposed 
of  in  a  few  words,  without  difficulty,  upon  a  different  principle. 

(1)  Per  Brainerd,  J.,  Mills  v.  Barber,  4  Day's  Rep.  430.     Per 
Baldwin,  J.,  Bengal  v.  Coivles,  5  Day's  Rep.  515. 


52 


ONE  PARTNER  BINDING 


intention  of  cheating  the  other,  goes  to  a  shop  and 
purchases  articles  such  as  might  be  used  in  the  partner- 
ship business,  which  he  instantly  converts  to  his  own 
separate  use,  if  there  was  no  collusion  between  him  and 
the  seller,  this  is  to  be  considered  as  a  partnership  trans- 
action, and  the  other  partner  is  liable  for  the  price  of  the 
goods,  without  proof  of  any  previous  dealings  between 
the  parties.(A)(l)  But  although  an  innocent  seller  is 
not  to  suffer  for  the  fraud  or  misconduct  of  the  partner, 
yet  where  he  is  expressly  forbidden  by  one  partner  to 
deliver  goods  on  the  joint  account,  he  must,  in  an  action 
for  goods  sold,  show  that  the  sale  was  adopted  by  the 
dissentient  partner,  or  that  he  derived  a  benefit  from  the 
delivery .(z)  (2)     So  one  partner  may  order  insurances 


(A)  Bond  V.  Gibson,  1  Campb.  185. 

(z)  Willis  V.  Dyson  1  Stark.  N.  P.  C.  164.    And  see 

field,  1  Salk.  291.     Minnett  v.  Whitney,  16  Vin.  Abr.  244. 
Fleming,  1  Younge  &,  Jerv.  226. 


•  V.  Lay- 
Vice  V. 


(1)  See  the  principle  stated  by  Spencer,  C.  J.,  Walden  v.  Sher- 
burne, 15  Johns.  Rep.  422,  423. 

(2)  Even  where  a  partnership  exists  between  tivo  persons  only,  the 
position  cannot  be  considered  as  established  law,  while  it  rests  upon 
the  authority  of  a  single  decision  at  Nisi  Prius.  Booth  v.  Q,uin  and 
Janney,  7  Price,  193,  was  the  case  of  an  action  against  a  firm  consist- 
ing of  two  partners  only ;  and  the  Court,  after  taking  occasion  to  ob- 
serve, that  it  was  with  much  reluctance  that  they  received  determina- 
tions at  Nisi  Prius,  on  questions  brought  before  them  for  more  deliberafe 
consideration,  {^Lord  Gcdway  v.  Matthew,  1  Camp.  403,  and  Willis  v. 
Dyson,  1  Stark.  164,  having  been  cited,)  however  high  the  authority 
cited  might  stand  in  their  estimation,  and  expressing  a  desire  that  the 
citing  such  cases  might  be  disconutinued  in  future  on  occasions  requir- 
ing more  elaborate  research,  desired  the  question  might  be  argued  as  if 
it  were,  (admitting  the  continuance  of  the  partnership,)  whether  the 
defendant  Janney  could  protect  himself  from  debts  incurred  by  Quin, 
by  the  notice  which  he  had  given,  that  he  would  not  be  answerable  fbr 
any  debts  contracted  inthe  partnership  name?  And,  after  the  argument 
was  concluded,  observing,  "  that  it  was  a  question  of  vital  importance 
to  the  commercial  world,"  they  ordered  a  new  trial,  the  verdict  having 
been  for  the  plaintiff",  in  order  that  a  bill  of  exceptions  might  be  ten-* 
dered,  or  some  other  course  adopted,  which  might  carry  the  question 
further  to  receive  the  most  solemn  decision.  I  have  not  been  able  to 
ascertain  what  has  since  been  done  in  this  case,  no  trace  of  it  appear- 
ing in  subsequent  reports.  It  may  be  fairly  concluded  from  it,  how- 
ever, that  the  question  is  by  no  means  settled  or  at  rest.  Where  there 
are  many  partners,  there  is  still  greater  difliculty  in  admitting,  that  one 


THE  FIRM  BY  SIMPLE  CONTRACTS.  52 

to  be  effected  on  the  account  of  his  co-partners,  and  such 
an  order  will  render  them  all  hable  for  the  premiunis.(A:) 
He  may,  likewise,  pledge  the  partnership  effects,  and  the 
pledge  will  bind  his  co-partners,  although  made  without 

{k)  Hooper  v.  Lnsby,  4  Campb.  66.  But  the  managing  owner  and 
part  owner  of  a  ship  has  no  implied  authority,  as  such,  to  order  in- 
surances to  be  effected  on  account  of  the  other  part  owners.  Id.  ibid. 
Bell  V.  Humphries,  2  Stark.  N.  P.  C.  345.  French  v.  Backhouse,  5 
Burr.  2727  ;  Ogle  v.  Wrangham,  Abbott,  76.  The  distinction  is,  that 
part  owners  are  tenants  in  common,  and  one  cannot  dispose  of  the  share 
of  the  other;  but  partners  are  joint-tenants  of  their  merchandise,  and 
one  may  dispose  of  the  whole  property. 


can  stop  the  whole  course  of  dealing  of  the  concern,  whenever  he  is 
pleased  so  to  do;  and  there  is  no  case  deciding  that  he  possesses  the 

power.     Lord  Holt,  in v.  Layfield,  which  was  an  action  against 

several,  said,  "  that  where  there  are  severed  partners,  and  a  man  goes 
upon  the  credit  of  all,  the  act  of  one  is  evidence  against  the  rest,  unless 
they  show  a  disclaimer  and  refusal  to  be  concerned  in  it;" — an  opinion 
which  would  prove  the  act  of  one  to  be  void,  if  against  the  consent  of 
a  majority  of  the  partners.     The  case  of  Minnett  v.  Whitney,  is  in 
no  respect  opposed  to  this  opinion,  as  will  appear  from  the  facts,  which 
are  thus  stated  in  Viner. — "  Three  persons  entered  into  partnership  in 
the  trade  of  sugar-boiling,  and  agreed  that  no  sugar  shoidd  be  bought 
without  the  consent  of  the  majority;  one  of  them  after  makes  a  pro- 
test that  he  would  no  longer  be  concerned  in  the  partnership  with  them. 
The  two  other  persons  after  make  a  contract  for  sugars,  the  seller  hav- 
ing notice  that  the  third  had  disclaimed  the  partnership,  he  shall  not 
be  charged."     The  most  that  can  be  collected  from  the  case  is,  that 
where  a  purchase  is  made  after  a  dissolution  of  partnership,  of  which 
the  seller  has  notice,  only  those  who  purchase  are  liable — for  if  the 
partnership  had  existed  when  the  sale  was  made,  all  would  have  been 
responsible  by  the  very  terms  of  it  for  purchases  made  by  a  majority. 
The  point  arose  in  a  case  before  Chancellor  Kent,  and  he  decided, 
that  the  acts  of  the  majority  of  the  partners  bound  the  rest,  unless  spe- 
cial provision  were  made  to  the  contrary.     Three  co-partners  engaged 
a  clerk,  as  book-keeper  and  cashier,  at  a  fixed  salary,  for  two  years, 
with  an  understanding  that  he  should  have  a  larger  compensation  as  the 
business  extended,  and  his  duties  increased  ;  and  during  the  third  year 
it  was  discovered  that  he  had  overdrawn  moneys  belonging  to  the  firm, 
and  applied  the  same  to  his  own  use,  of  which  he  afterwards  rendered 
a  statement;  h\it  ti/)o  of  the  partners,  against  the  consent  of  the  third, 
continued  him  in  their  employ :     Held,  that  he  was  entitled  to  an  in- 
creased compensation  for  his  services  after  the  second  year,  the  fact  of 
continuing  him  in  service  after  a  discovery  of  his  improper  conduct, 
being  an  admission  that  he  had  not  forfeited  his  right  to  an  increased 
allowance.     Kirk  v.  Hodgson  et  al.  3  Johns.  Cha.  Rep.  400.     The 
learned  Judge,  however,  by  whom  this  last  mentioned  decision  was 

10 


52 


ONE  PARTNER  BINDING 


their  privity  and  consent,  if  the  pawnee  have  no  notice 
that  the  property  is  partnership  property,  and  there  be 
no  fraud  or  collusion  in  the  transaction.  For  instance, 
where  two  persons  purchased,  for  the  joint  account  of 
themselves  and  a  third  person,  some  clover  seed,  and 
shipped  and  consigned  the  same  to  the  latter,  to  whom 
they  transmitted  the  bill  of  lading  and  invoice;  the  con- 
signee having  lodged  with  a  factor  the  bill  of  lading  for 
the  landing  and  sale  of  the  seed,  and  having  afterwards 

borrowed  money  from  him  on  the  security  of  it, 
[  *53  ]  it  was  *held  that  the  pledge  was  available  against 

the  shippers. (/)  So  where  A  and  B  directed  their 
broker  to  purchase  cotton,  in  which  he  was  to  be  allowed 
interest  to  the  extent  of  one-third,  he  acting  in  the  bu- 
siness free  of  commission;  he  also  insured  the  goods, 
and  deposited  them  in  warehouses,  of  which  he  kept  the 
key  for  their  joint  security,  and  throughout  every  part 
of  the  correspondence  relative  to  the  goods,  the  transac- 
tion was  referred  to  as  a  joint  concern, — the  Court  of 
King's  Bench  held  that  he  was,  quoad  hoc,  to  be  deemed 
a  partner ;  and  therefore  that  having  pledged  them  with- 
wout  fraud  or  collusion  on  the  part  of  the  pawnee,  the 
latter  was  entitled  to  hold  them  as  against  the  princi- 
pals.(m)  And  if  one  of  two  partners  in  a  speculation 
in  coffee  deliver  the  coffee  for  exportation,  and  borrow, 
from  the  person  to  whom  it  is  delivered,  money  upon  its 
security,  the  other  partner  is  bound  by  it;  and  if  the  pro- 
perty, on  a  sale,  should  not  produce  the  sum  lent,  he 

(Z)  Raba  i-.  Ryland,  Gow's  N.  P.  C.  132.  See  also  S.  P.  Tupper 
V.  Haythorne,  Ibid.  135.  n.  Metcalf  r.  Royal  Exch.  Ass.  Comp.,  Bar- 
nard. 343. 

(m)  Reid  v.  Hollinshead,  4  B.  &  C.  867.     S.  C.  6  D.  &  R.  444. 


made,  has  remarked  of  it,  "  that  it  related  only  to  the  case  of  the 
management  of  the  interior  concerns  of  the  partners  among  themselves, 
and  to  that  it  is  to  be  confined."  (3  KenVs  Comm.  45,  2d  edit.)  And 
it  is  to  be  observed,  that  all  the  Barons  of  the  Exchequer  in  Vice  v. 
Fleming,  1  Young  &l  Jerv.  Rep.  227,  asserted  the  power  of  one  partner 
to  discharge  himself  from  future  liabilitity  by  an  absolute  notice,  unequiv- 
ocally given  to  a  person  who  in  a  course  of  dealing  might  have  a  claim 
against  all  the  partners,  arising  from  the  act  of  one  partner;  and  the  doc- 
trine is  also  sustained  by  the  case  of  Leavitt  v.  Peck,  3  Conn.  Rep.  124. 


THE  FIRM  BY  SIMPLE  CONTRACTS.  53 

will  be  responsible  for  the  difrerence.(w)  But  although 
one  partner  may  pledge  joint  propety,  and  the  pledge 
will  be  binding  upon  his  co-partners,  if  fairly  conducted, 
yet  the  same  principle  does  not  extend  to  part-owners 
or  persons  who  have  jointly  engaged  in  a  particular 
purchase  they  are  to  be  regarded  as  tenants  in  common 
of  the  subject  matter  of  the  purchase,  and  each  being 
entitled  to  an  undivided  moiety  only,  one  cannot,  even 
before  partition  made,  convey  any  better  or  greater  title  to 
the  pawnee  than  he  himself  had  ;(o)  and  after  a  partition 
has  taken  place,  as  each  is  then  entitled  to  a  distinct 
specific  moiety,  a  pledge  by  one  of  the  moiety  belong- 
ing to  the  other  is,  in  effect,  a  pledge  of  a  specific  chat- 
tel, and  the  property  not  being  in  the  pawner,  the  pa^^'- 
nee,  of  course  cannot  acquire  a  lean  upon  it,  for  the 
monies  he  may  advance.(/>)  Thus,  where  one  of  two 
persons,  partners  in  a  particular  transaction,  borrowed 
money  on  partnership  goods  in  the  hands  of  a  broker, 
by  drawing  bills  on  the  broker,  which  were  discounted 
by  a  third  party,  and  the  broker's  warrants  deposited  in 
the  hands  of  such  third  party  as  a  security ;  the  broker 
was  desired  by  the  partners  to  make  a  division  of  the 
goods  held  on  their  joint  account,  who  accord- 
ingly appropriated  *specific  warrants  to  each.  [  *54  ] 
Half  the  bills  which  had  been  discounted  on  the 
security  of  the  warrants  had  been  paid,  and  the  broker, 
at  the  request  of  his  employer,  procured  the  same  per- 
son to  renew  the  other  half,  and  as  security  lodged  the 
warrants  which  had  been  appropriated  to  tlie  other  part- 
ner on  the  division :  it  was  decided  that  the  partnership 
had  been  determined  by  the  partition,  and  that  the  second 
pledge  was  a  pledge  of  a  specific  chattel  belonging  to  an- 
other ;  that  the  discounter  had  no  lien  on  the  warrants 
(although  he  was  entirely  ignorant  that  any  other  person 
than  his  debtor  had  any  interest  in  the  goods),  and  there- 

(n)    Ex  parte  Cellar,  1  Rose  B.  C.  297. 

(o)   Barton  v.  Williams,  5  B.  &  A.  395.(1)  (p)  Id.  Ibid. 


(1)  S.  C.  in  Error,  Young  &  McClell.  Rep.  406.     Judgment  af- 
firmed. 


54 


ONE  PARTNER  BINDING. 


fore  that  trover  was  maintainable  by  the  rightful  owner 
against  the  discounter.(^)  So  where  one  partner  con- 
signs goods  to  another  partner  for  a  specific  purpose,  and 
in  the  performance  of  a  joint  contract,  the  consignee  has  no 
right  to  divert  that  purpose,  and  pledge  the  goods;  neither 
has  the  pawnee  any  lien  on  the  goods  for  the  advances 
made  by  him,  if  at  the  time  of  the  pledge  it  was  within  his 
knowledge  that  it  was  partnership  property,  and  that  the 
proceeds  were  not  to  be  applied  for  the  purposes  of  the 
partnership. (r)  Thus,  where  three  persons  residing  in 
Dublin.,  and  different  firms  in  London.,  jointly  engaged 
to  supply  provisions  for  the  navy,  which  were  to  be  de- 
posited in  government  stores,  and  the  residents  at  Dub- 
lin., in  performance  of  the  contract,  shipped  a  cargo  of 
provisions  to  London.,  and  sent  to  one  of  the  firms  in  Lon- 
don a  bill  of  lading,  deliverable  to  the  order  of  the  ship- 
per, and  indorsed  in  blank,  it  was  determined,  that  the 
house  in  London  could  not  pledge  the  bill  of  lading  to 
their  own  bankers  (who  had  notice  of  the  consignment, 
and  knew  the  nature  of  the  transaction)  for  advances  on 
their  own  account,  although  there  had  been  other  trans- 
actions, independent  of  the  contract  between  the  house 
in  Dublin  and  the  London  house,  upon  which  account, 
the  former  was  indebted ;  and  although  the  house  in 
Lo7idon  was  under  acceptances  to  a  considerable  amount, 
in  anticipation  of  the  particular,  and  other  bills  of  lading 
of  the  shipments  to  be  made  from  Irela?id.(^s.) 

Independently  of  the  instances  we  have  enumerated, 
one  partner  may,  in  any  other  case  of  simple  contract, 

effectually  pledge  the  partnership  firm  to  the 
[  *55  ]  performance  of  an  engagement  *he  may  singly 

make,  if  it  be  done  in  the  usual  and  accustomed 
mode  of  dealing,  and  have  relation  to  the  trade  in  which 
the  partners  are  jointly  engaged.(l)     And  where  the 

{q)  S.  C.  in  error,  1  McClelland  v.  Younge,  307. 

(r)  Paley  Pr.  &  Ag.  180.         (s)  Snaith  v.  Burridge,  4  Taunt.  684. 


(I)  Whether,  where  one  partner  hired  five  slaves,  for  partnership 
account,  and  gave  a  writing  signed  by  himself  alone,  certifying  that  he 
had  hired  the  said  slaves  at  the  price  of  $350,  and  that  this  should  enti- 
tle the  person  from  whom  he  hired  them  to  the  other  partner's  bond  for 


THE  FIRM  BY  SIMPLE  CONTRACTS.  55 

transaction,  which  furnishes  to  a  stranger  an  apparent 
claim  upon  the  firm,  took  its  origin  in  a  deahng  with  one 
partner,  strictly  within  the  ordinary  course  of"  business, 
it  affords  the  firm  no  ground  of  exemption  from  the  re- 
sponsibility created,  that,  in  consequence  of  the  fraudu- 
lent and  dishonest  conduct  of  the  particular  partner,  the 
transaction,  in  respect  of  which  they  are  charged,  was 
beneficial  to  himself  alone ;  for,  by  forming  the  connec- 
tion of  partnership,  the  partners  declare  themselves  to 
the  world  satisfied  with  the  good  faith  and  integrity  of 
each  other,  and  impliedly  undertake  to  be  responsible 
for  what  they  shall  respectively  do  within  the  compass 
of  the  partnersliip  concerns.  Therefore,  if  after  a  gene- 
ral partnership  between  two  conveyancers  in  the  coun- 
try, money  is  received  partly  by  one  of  the  firm  and 
partly  by  the  other,  to  be  laid  out  upon  a  mortgage, 
which  is  forged  by  one  of  the  partners,  without  the 
knowledge  of  the  other,  the  innocent  partner  is  liable  to 
repay  the  money. (^)  (1)  Even  where  the  representations 
made  by  one  partner  to  a  person  dealing  with  the  firm 
are  not  only  untrue,  but  the  supposed  transactions,  out 
of  which  a  joint  liability  arises  and  to  which  the  repre- 
sentations refer,  are  fictitious,  the  innocent  partner  will 
be  bound  to  fulfil  them,  if  it  was  within  the  scope  of  the 
particular  partner's  authority  to  do  what  he  has  untruly 
stated  to  have  been  done.(u)  (2)  But  in  a  matter  wholly 

(t)  Willet  V.  Chambers,  Cowp.  814. 

[u)  Rapp  V.  Latham,  2  B.  &  A.  795.  And  see  Harding  v.  Carter, 
Park  on  Ins.  4.  Stone  v.  Marsh,  6  B.  &  C.  551.  Hume  v.  Bolland, 
1  Ry.&  Mood.  371. 

the  same,  payable  on  the  1st  of  Januori/,  1811,  an  action  could  be  sus- 
tained against  both  partners  on  the  refusal  to  give  such  bond  ?  See 
fVoody  V.  Floumoy,  6  Munf.  506. 

(1)  See  Mamifadurers  and  Mechanics  Bank  v.  Gore  et  al.  Board- 
man  V.  Gore  ei  al.  15  Mass.  Rep.  75,  331.  See,  also,  Hadjield  v. 
Jameson,  2  Munf.  53.  McFarland  v.  Crary  et  al.  8  Cow.  Rep.  253. 
Church  V.  Sparrojv,  5  Wend.  223. 

(2)  But  if  money  be  lent  to  one  of  two  partners,  who  says  he  bor- 
rows it  for  the  firm,  and  he  misapply  it,  and  there  be  proof  that  the 
plaintiff  lent  it  under  circumstances  of  negligence,  and  out  of  the  ordi- 
nary course  of  business,  he  cannot  recover  against  the  other  partner. 
Lloyd  et  al.  v.  Freshjield  et  al.  2  Uarr  &  Payne,  325. 


55 


ONE   PARTNER   BINDING. 


unconnected  with  the  partnership,  one  partner  cannot 
bind  the  others.(v)  (1)  And  where  one  engages  in  any 
contract  connected  with  the  business,  for  which  he  solely 
derives  the  benefit,  and  this  circumstance  is  known  to 
the  person  with  whom  he  contracts,  the  firm  will  not  be 
liable.  Thus,  where  the  proprietor  of  a  stage  coach 
intended  to  relinquish  a  part  of  his  interest  in  the  con- 
cern in  favour  of  a  particular  person,  and  that  person 
agreed  with  one  of  the  proprietors  of  the  mail-coach, 
who  was  also  the  book-keeper,  to  resign  the  refusal  to 
him  in  consideration  that  his  family  and  private  parcels 
should  be  carried  free  by  the  mail ;  and,  in  pursuance 

of  such  agreement,  the  parcels  were  conveyed 
[  *56  ]  exempt  from  carriage  for  two  years,  *and  one 

was  afterwards  lost ;  it  was  determined  that  this 
agreement  did  not  bind  all  the  proprietors,  and  conse- 
quently that  they  were  not  jointly  responsible  to  make 
good  the  loss,  unless  actual  notice  of  the  existence  of 
the  understanding  had  been  given  to  them,  to  which 
they  did  not  object.(tij)  Positive  consent,  however,  or 
acquiescence,  which  in  all  cases  may  be  inferred  from 
passive  privity,  will  induce  that  responsibility  upon  part- 
ners which  a  different  line  of  conduct  would  have 
averted.  For  instance,  in  the  case  to  which  we  last 
alluded,  all  the  members  of  the  firm  might  have  been 
compelled  to  answer  in  damages  for  the  loss  of  the  par- 
cel, if  they  had  been  cognizant  of  the  arrangement  be- 
tween the  individual  partner  and  the  ow^ner  of  the  parcel, 
and  had  neglected  to  signify  their  disapprobation  of  it. 

(v)  Sandilands  v.  Marsh,  2  B.  &  A.  678 

(iv)  Bignold  v.  Waterhouse,  1  Maul.  &  Selw.  259. 


(1)  Per  Van  Ness,  J.,  Livingston  v.  Roosevelt,  4  Johns.  Rep.  265, 
266.  Per  Duncan,  J.,  12  Serg,  &  Rawle,  15.  So  a  co-partnership 
formed  to  transport  passengers  and  their  baggage,  by  a  line  of  stages, 
does  not,  from  the  mere  nature  of  the  business,  authorise  one  of  the 
partners  to  bind  the  firm,  unless  they  expressly  assent,  by  an  agree- 
ment, to  convey  a  person  a  given  distance,  within  a  specified  time. 
fValcot  V.  Canjield  et  al.  3  Conn.  Rep.  194.  So  in  Scotland  it  has 
been  held,  that  subscribing  to  a  Canal  Company  was  beyond  the  ordi- 
nary power  of  a  partner.  Bo-ness  Canal  Company  against  McMpine^ 
Fleming  ^  Co.  stated  2  BelVs  Comm.  615,  n.  2. 


THE  FIRM  BY  SIMPLE  CONTRACTS.  56 

Therefore,  where  one  of  several  defendants  partners  as 
carriers,  together  with  the  coach-office  keeper,  had 
agreed  with  a  party  to  carry  at  the  ordinary  rates,  not- 
withstanding the  notice,  and  there  had  been  subsequent 
accounts  settled  upon  the  footing  of  such  contract,  it 
was  held  that  the  carriers  were  liable,  and  not  only  the 
partners  at  the  time,  but  all  who  might  afterwards  be- 
come so,  until  special  notice  given,  of  an  intention  to  re- 
scind the  contract.(.r)  So  it  has  been  determined,  that 
where  one  of  two  partners  makes  a  contract  as  to  the 
terms  on  which  any  business  is  to  be  transacted  by  the 
firm,  although  such  business  is  not  only  not  in  their 
usual  course  of  dealing,  but  is  even  contrary  to  their  ar- 
rangement with  each  other;  yet  if  the  business  is  after- 
wards transacted  by  or  with  the  knowledge  of  the  other 
partner,  he  is  bound  by  the  contract  made  by  his  part- 
ner.(.y)(l) 

One  partner  can  likewise  bind  the  firm  by  a  guarantee 
to  be  answerable  for  the  debt  or  responsibility  of  a  third 
person,  given  in  a  matter  that  relates  to  the  partnership. 
In  the  case  of  Hope  v.  Ciist^{z)  Lord  Mansfield  laid  down, 
that  one  partner  may  bind  his  co-partners  by  giving  a 
letter  of  credit  or  guarantee  in  the  joint  name,  and  that 
the  person  in  whose  favour  the  guarantee  is  given  has  a 
remedy  upon  it  against  all  the  partners ;  although,  where 
such  an  instrument  is  given  without  the  consent  of  the 
other  partners,  and  is  contrary  to  their  interests, 
the  court  will  look  at  *it  very  strictl}^;  and  if  there  [  *57  ] 
be  any  ground  for  a  suspicion  of  "  Covin,  or  such 
gross  negligence  as  may  amount  to  or  be  equivalent  to 
covin,"  the  partners  will  not  be  liable.  And  in  a  more 
recent  case(a)  in  which  a  single  partner,  in  the  partnership 
name  had  guaraYiteed  the  payment  of  certain  purchases 
made  by  a  person  unconnected  with  the  firm,  and  the 

{x)  Helsby  v.  Mears,  5  B.  &  C.  504.  S.  C.  8  D.  &  R.  289. 
(y)  Sandilands  v.  Marsh,  2  B.  &  A.  673. 
(z)  Cited  in  Shirreff  v.  Wilks,  1  East,  53. 
(a)  Ex  parte  Gardom,  15  Ves.  286. 


(1)  See  Marsh  v.  Gold  et  al.  2  Pick.  Rep.  285. 


56 


ONE  PARTNER  BINDING 


counsel(i)  declined  arguing  whether  such  a  guarantee 
bound  the  partnership,  Lord  Eldon  remarked  that  the  ob- 
jection, that  the  partership  was  not  bound  by  the  sig- 
nature of  one  partner,  was  properly  abandoned.  So  in  Ex 
parte  Rolfe,(c)  the  same  learned  lord  stated  the  distinction 
to  be,  that  a  partner  has  no  right  to  guarantee  a  separate 
transaction  at  the  expense  of  the  other  partners,  where 
they  are  not  concerned ;  but  that  a  partner  may  give  a 
guarantee  for  his  partners,  in  a  matter  that  relates  to 
the  partnership.  And  although  a  case  which  came 
before  Lord  Ellenhorough  may  appear  to  conflict  with 
these  authorities ;  yet  on  close  investigation  it  is  per- 
fectly reconcilable.  That  was  an  action(rf)  against 
partners  on  a  guarantee  given  by  one  of  them  without 
special  authority,  for  the  payment  of  a  bill  of  exchange, 
and  there  being  no  evidence  to  show  that  the  transaction 
was  connected  with  the  partnership,  his  lordship  held 
that  the  guarantee  was  not  binding  on  the  firm;(l)  but 
to  prove  an  authority  so  to  bind  the  partnership,  he  said 
that  a  subsequent  recognition  would  be  tantamount  to  a 
previous  command ;  and  that  an  authority  in  the  par- 
ticular instance  should  be  inferred,  if  a  previous  course 
of  dealing  were  shown,  in  which  similar  guarantees  had 
been  given  in  the  partnership  name,  with  the  privity  of 
all  the  partners.  Where  one  partner,  with  the  knowledge 
of  his  co-partners,  gives  a  guarantee  in  a  transaction  not 
referable  to  the  partnership,  they  can  of  course  adopt  it, 
in  which  case  they  are  concluded  from  objecting  to  the 
want  of  authority  in  the  partner  giving  it ;  and  Lord 
Eldon  has  said  that,  if  partners  are  informed  of  such  a 
measure  having  been  taken  by  their  partner,  though 
perhaps  not  in  that  particular  transaction,  and  they  do 
not  think  proper  to  state  whether  they  authorised  such 


h)  Sir  S.  Romilly.     (c)  2  Gl.  &  Jam.  306. 
d)  Duncan  v.  Lowndes,  3  Campb.  478. 


(1)  See  iM9of  V,  Sabin,  19  Johns.  Rep.  154.  A^ew  York  Firemen 
Ins.  Co.  V.  Bennett  et  al.  5  Conn.  Rep.  574.  Bank  of  Rochester  v. 
Bowen.  Boyd  v.  Plumb,  7  Wend.  158.  309.  Hamill  v.  Purvis,  2 
Penns.  Rep.  177. 


THE  FIRM  BY  A  GUARANTEE.  57 

partner  so  to  act  or  not,  it  is  not  too  much  to  take  it  for 
granted  that  they  accede  to  the  guarantee  which  their 
partner  has  given. (e)  Where  a  guarantee  given  by  one 
partner,  has  reference  to  business  actually  trans- 
acted by  *the  partnership,  it  will  be  binding  upon  [  *58  ] 
the  firm,  though  the  business  so  transacted  was 
out  of  the  ordinary  course  of  their  partnership  business.(l) 
Thus,  where  A  employed  B  and  C,  who  were  his  navy 
agents,  to  lay  out  money  in  the  purchase  of  an  annuity 
for  him,  of  which,  and  of  the  fact  of  the  money  being 
laid  out,  both  were  cognisant;  but  B,  unknown  to  C, 
guaranteed  the  punctual  payment  of  the  annuity,  it  was 
held  that  though  it  was  no  part  of  the  business  of  navy 
agents  to  negociate  annuities,  yet  that  C  was  bound  by 
this  enjiaffement  of  B's  :  for  beincr  connected  with  the 
transaction,  which  both  had  undertaken,  and  to  which 
both  were  privy,  it  became  in  point  of  law,  an  assurance 
made  by  one  partner  with  reference  to  business  trans- 
acted by  both.(/)(2) 

Although,  in  simple  contracts,  which  may  have  a  ten- 
dency to  promote  the  common  object,  the  act  of  each 
partner  binds  all  the  others,  yet  one  partner  cannot,  as 
such,  bind  another  by  deed,  even  in  commercial  dealings  ; 
and  this  both  for  technical  reasons,  and  on  the  general 
policy  of  the  law.  No  custom  could  extend  to  the  exe- 
cution of  instruments  of  such  efficacy  as  deeds ;  the 
sealing  and  delivery  by  the  party,  or  some  one  expressly 
authorized  by  him,  who  thus  Ijecomes  his  attorney  for 
the  purpose,  are  indispensably  necessary;  and  such  a 
power  if  allowed,  would  have  the  most  mischievous  ten- 
dency; for,  as  the  want  of  consideration  for  securities 

(e)  Ex  parte  Nolle,  2  Gl.  &  Jam.  306. 
(/)    Sandilands  v.  Marsh,  2  B.  &  A.  673. 


(1)  Sutton  fy  McNickle  v.  Irwine  ct.  al.  12  Serg.  &  Rawle,  13. 

(2)  So  where  a  guaranty  is  given  personally  and  individually  to  one 
of  several  partners  in  a  firm,  an  action  may  be  maintained  upon  it  in 
the  names  of  all  the  firm,  if  it  appears  that  the  guaranty  was  intended 
for  the  benefit  of  all.  Garrett  et  al.  v.  Handley  7  Dow.  &l  Rvl.  144. 
S.  C.  4  Barn.  &  Cresw.  664. 

.        11 


58  ONE  PARTNER  BINDING 

under  seal  cannot  be  inquired  into,  it  would  extend  to 
the  case  of  mortgages,  and  would  enable  a  partner  to 
give  to  a  favourite  creditor  a  real  lien  on  the  estates  of 
the  other  partners.  This  question  was  agitated  in  a 
case  in  which  a  deed  was  executed  by  one  partner  in  a 
partnership  transaction,  for  a  full  and  valuable  con- 
sideration received  by  all  the  partners ;  but  it  was  de- 
cided by  the  Court  of  King's  Bench  that  the  deed  was 
inoperative  against  the  firm. (^•)  (1)  Nor  will  the  cir- 
cumstance of  the  partnership  being  constituted  by  deed 
make  any  difference  j(/i)  unless  a  particular  power  au- 
thorising the  partners  to  execute  such  instruments  for 
each  other  be  reserved.(i)  (2)     It  has  indeed  been  ruled 

by  Lord  Mansfield^  that,  for  a  partnership  debt, 
[  *59  ]  one  partner  has  authority  to  *execute  a  bond  for 

his  co-partners  ;(i^)  the  propriety,  however,  of  this 
decision  cannot  now  be  canvassed,  because  the  facts 
that  it  involved  are  not  sufficiently  disclosed. (/)  But, 
notwithstanding  one  partner  has  not  an  implied  autho- 
rity to  bind  his  co-partners  by  deed,  his  signature  to  a 

(§•)  Harrison  v.  Jackson,  7  T.  R.  207.  See  also  Thomason  v.  Frere, 
10  East,  418.  (Ji)  Harrison  v.  Jackson,  supra. 

(i)  Id.  Ibid.  Steiglitz  v.  Egginton,  Holt's  N.  P.  C.  141. 

(Ar)  Mears  v.  Serocold,  cited  by  Dumpier,  in  arg.  in  Harrison  v, 
Jackson,  supra.       (/)  Per  Lord  ^en»/o/i,  Harrison  v.  Jackson,  supra. 

(1)  Clement  v.  Brush,  3  John.  Ca.  180.  .Anonymous,  Tayl.  Rep. 
113.  Becker  v.  Kirk,  cited  2  Caines'  Ca.  5.  See  4  Day's  Rep.  429, 
430.  Gerard  v.  Basse  et  al.  1  Dall.  119.  Anon.  2  Hayw.  Rep.  29, 
over  ruling  Walker  et  al.  v.  Dickerson  et  al.  2  Hayw.  Rep.  23.  See 
Garland  v.  Davidson,  3  Mimf.  189.  Case  of  James  Taylor,  1  P.  A. 
Browne's  Rep.  App.  Ixxiii.  Person  v.  Carter  et  al.  3  Murph.  Rep. 
321.  TVilliams  V.  Hodgson,  2  Har.  &,  Johns.  474.  McBride  v.  Ha- 
gan,  1  Wend.  Rep.  326;  4  Day's  Rep.  428,  429.  The- United  States 
V.  Astley  et  al.  3  Wash.  C.  C.  Rep.  508;  1  McCord's  Cha.  Rep.  171  ; 
Blackburn  v.  McAllister,  Peck's  [Tenn.)  Rep.  371.  See  and  consider 
Orr  V.  Chace,  1  Meriv.  Rep.  729 — a  case  which  seems  contrary  to  es- 
tablished doctrine.     See  11  Pick,  Rep.  403. 

(2)  Trimble  v.  Coons,  2  Marsh.  Rep.  (Kentucky)  376 — where  it  is 
said  that  the  authority  must  be  under  seal.  In  Skinner  v.  Dayton,  19 
Johns.  Rep.  513,  it  was  held'according  to  the  marginal  abstract  of  the 
case,  that  such  authority  may  be  by  parol.  See  3  Kenfs  Com.  48, 2d 
edit.  So  also  in  Cady  v.  Shepherd,  11  Pick.  Rep.  400.  Gram  v. 
Seton,  I  Hall's.  Rep.  262.  Jackson  v.  Porter,  20  Martin's  Louis, 
Rep.  200. 


THE  FIRM  BY  DEED.  59 

a  deed  on  the  behalf  of  the  firm  will  be  binding  upon 
them,  if  it  be  done  with  the  express  sanction  of  the  dif- 
ferent members,  and  in  their  presence.  Thus,  where  one 
partner  by  the  authority  of  his  co-partner,  and  in  his 
presence,  executed  a  deed  for  both  of  them,  in  a  trans- 
action in  which  they  were  both  interested,  it  was  decided 
to  be  a  vahd  execution  to  charge  both,  though  the  deed 
'Was  sealed  only  once.(m)(l)  In  such  a  case,  it  is  not 
essential  that  each  partner  should  actually  deliver  the 
deed,  the  fact  of  the  presence  of  all  the  partners  at  the 
time  of  its  execution,  and  the  circumstance  of  their 
treating  the  deed  as  their  own,  being  sufficient  to  raise 
the  inference  of  a  constructive  delivery  as  against  all  of 
them.(w)  And  a  warrant  of  attorney  under  seal,  exe- 
cuted by  one  person  for  himself  and  his  partner,  in  the 
absence  of  the  latter,  but  with  his  consent,  is  a  sufficient 
authority  for  signing  judgment  against  both.(o)  (2)  But 
a  subsequent  acknowledgment  by  one  partner,  that  he 
gave  an  authority  to  execute  a  deed  on  his  behalf,  will 

(wi.)Ball  V.  Dunsterville,  4  T.  R.  313.     See  also  Lord  Lovelace's 
case,  Sir  W.  Jones,  268.— Williams  v.  Walsby,  4  Esp.  N.  P.  C  220. 
(n)  Burn  v.  Burn,  3  Vesey,  578. 

(0)  Brutton  v  Burton,  1  Chit.  Rep.  707.  But  judgment  cannot  be 
entered  up  against  two  defendants  on  a  wnrrant  of  attorney,  purporting 
to  be  an  authority  to  confess  a  judgment  against  three,  but  signed  only 
by  two,  the  third  refusing  to  execute  it.     Harris  v.  Wade,  Ibid.  322. 

(1)  Per  Storv,  J.,  Halsey  et  al.  v.  Whitney  et  al.  4  Mason's  Rep. 
232;  Mackay  v.  Bloodgood  et  al.  9  Johns.  Rep.  285,  a  stronger  case 
than  Ball  v.  Dunsterville,  as  the  deed  was  not  executed  in  the  imme- 
diate presence  of  the  partner  who  did  not  sign  and  seal.  See  Ludloiv 
V.  Simond,  2  Caines'  Ca.  1.  But  the  instrument  must  be  so  worded 
and  executed,  as  to  exhibit  on  its  face  the  intention  to  bind  the  partner- 
ship, and  to  preclude  the  inference  that  is  an  individual  engagement. 
Meade  v.  Tomlinson,  1  Day's  Rep.  148.  In  that  case  it  was  decided, 
that  a  surviving  partner  could  not  maintain  an  action  of  covenant  on  a 
charter-party  entered  into  by  his  deceased  co-partner,  in  his  own  name, 
with  the  defendant.  It  appeared  that  the  charter-party  was  entered 
into  by  the  deceased  for  the  joint  account  of  the  plaintiff  and  himself, 
but  the  plaintiff  was  not  named,  nor  the  partnership  mentioned.  The 
report  is  not  very  satisfactory,  and  the  decision  is  contrary  to  the  prin- 
ciples laid  down  by  the  King's  Bench  in  Garrett  et  al  v.  Handle^},  3 
Dowl.  &  Ryl.  144.  See  also  Tultle  v.  Eskridge,  2  Munf.  330.  Shel- 
ton  V.  Pollock,  1  Hen.  &  Munf.  422. 

(2)  Nichols  V.  Chapman,  9  Wend.  Rep.  454,  contra. 


59 


ONE  PARTNER  BINDING 


not  give  the  deed  validity  as  against  him,  unless  the 
authority  itself  be  shown  to  have  been  legal,  and  under 
seal.(/>)(l) 

Where  one  partner  executes  a  bond  in  his  own  name 
and  that  of  his  co-partner,  as  their  joint  and  several 
bond,  the  bond,  although  inoperative  against  the  latter, 
is  still  a  valid  separate  bond  of  the  partner  by  whom  it 
was  executed ;  for  he  cannot  avail  himself  of  the  objec- 
tion arising  from  the  non-execution  by  his  co-part- 
ner.{q)  (2)  So,  if  a  partner,  on  behalf  of  himself  and 
his  co-partner,  refer  all  differences  between  them  and  a 
third  person  to  arbitrators,  and  promise  to  per- 
[  *60  ]  form  their  award,  which  ^directs,  that  the  suits 

(p.)  Steiglitz  V.  Egginton,  Holt's  N.  P.  C.  141. 
{q)  Elliott  V.  Davis,  2  Bos.  and  Pul.  338,     Hawkshaw  v.  Parkins, 
Swanst.  543. 


(1)  Skinner  v.  Dayton,  19  Johns.  Rep.  513.  Cady  v.  Shepherd,  11 
Pick.  Rep.  400.  Gram  v.  Sefon,  1  Hall's  Rep.  262,  contra.  In  the 
case  of  Darst  et  al  v.  Both,  4  Wash.  C.  C.  Rep.  471,  the  action  was 
brought  by  the  plaintiffs  upon  a  covenant  executed  by  one  of  them, 
and  having  only  the  signature  and  seal  of  Henry  Darst  4'  Co.  and  of 
the  defendant,  and  the  execution  of  the  deed  by  one  of  the  plaintiffs, 
with  the  assent  of  the  otheic,  was  proved  by  their  subsequent  rati- 
fication only.  The  defendant  liofh,  by  whom  the  deed  was  certainly 
well  executed,  after  the  performance  by  the  plaintiffs  of  the  contract  on 
their  parts,  raised  the  question  as  to  the  validity  of  the  execution  of 
the  deed  by  the  plaintiffs,  against  them,  they  seeking  to  enforce  the 
performance  by  the  defendant  of  his  contract.  In  Steiglitz  v.  Eggin- 
ton the  defendants  were  sued  upon  award,  made  upon  a  submission 
imder  seal,  executed  by  one  of  them,  for  "  self  and  partner,''''  in  his 
own  name,  and  the  defective  execution  was  sought  to  be  supplied  by 
evidence  of  the  subsequent  acknowledgment  of  the  other  partner,  that 
he  had  agreed  to  the  submission.  The  doctrine  of  the  text  is  supported 
by  the  case  of  Hart  v.  Schaiib,  1  Penns.  Rep.  285.  Pickering  v.  Holt, 
6  Greenl.  Rep.  160.  Hanford  v.  McXair,  Blood  v.  Goodrich.  9 
Wend.  Rep.  68.   12  Wend.  Rep.  525.     See  12  Wend.  Rep.  55. 

(2)  Green  et  al.  v.  Beats,  2  Gaines'  Rep.  254.  Clement  v.  Brush, 
3  Johns.  Ca.  140.  Skinner  v.  Dayton,  19  Johns.  Rep.  513.  Wil- 
liams V.  Hodgson,  2  Harr.  &,  John.  474.  Gates  v.  Graham,  12 
Wend.  Rep.  53.  But  the  action  must  be  brought  against  the  partner 
alone  who  executed  the  obligation  ;  for  if  the  other  partners  be  joined, 
the  plaintiff  cannot  recover  against  them,  nor  against  the  partner  who 
actually  did  execute  the  instrument,  Hart  v.  Schaub,  1  Penns.  Rep. 
285. 


THE  FIRM  BY  A  RELEASE.  60 

against  such  partner  shall  cease,  and  that  he  shall 
pay  a  certain  sum;  such  partner  is  liahle  to  an  action 
for  non-performance  of  the  award,  although  the  other 
partner  is  not  made  a  party  to  the  submission. (r)  (1)  But 
where  an  individual  partner  executes  a  deed  for  himself 
separately,  on  the  faith  and  understanding  that  it  is  to 
be  executed  by  all  the  partners,  it  does  not  bind  him  un- 
less the  execution  of  all  is  procured,  on  the  principle  that 
the  transaction  is  incomplete.  It  has,  therefore  been 
determined  that  an  award  made  against  one  member  of 
a  firm,  by  virtue  of  a  deed  of  reference  executed  only 
by  such  member,  upon  the  faith  that  it  was  to  be  exe- 
cuted by  all  the  partners,  is  not  evidence  of  a  debt  due 
from  such  partner.(.s)  In  bankruptcy,  however,  as  \\ill 
be  hereafter  seen,  one  partner  can  execute  a  deed  on 
behalf  of  himself  and  his  co-partners,  and  it  will  be 

(r)  Strangford  v.  Green,  2  Mod.  228. 

(s)  Antram  v.  Chase,  15  East,  209.     See  also  Dutton  v.  Morrison, 
17  Vesey,  193.     Johnson  v.  Baker,  4  B.  &  A.  440. 


(1)  Slead  et  al.  v.  Salt,  10  Moore's  Rep.  389.  3  Bingh.  101. 
S.  C.  This  was  the  case  of  a  submission  not  under  seal,  and  was 
decided  upon  the  authority  of  Strangford  v.  Green.  In  Pennsylvania, 
however,  it  had  been  decided,  that  one  partner,  unless  perhaps  where 
there  is  express  dissent  on  the  part  of  the  other  partner  communicated 
to  the  party  litigant  with  the  firm,  may  by  agreement  in  writing  not 
under  seal,  refer  any  partnership  matter,  and  the  award  will  be  binding 
on  the  firm.  Taylor  v.  Coryell,  12  Serg.  &  Rawle,  243.  And  the 
same  point  has  been  decided  in  Kentucky,  Southard  et  al.  v,  Steele,  3 
Monroe's  Rep.  433.  Though  one  partner,  as  such,  cannot  bind  his 
co-partner  by  a  bond,  or  writing  under  seal,  to  comply  with  an  award ; 
(McBride  et  al.  v.  Ilagan  et  al.  1  Wend  Rep,  326.  Karthaus  v.  Ferrer 
et  al.  2  Peter's  Sup.  C.  222,)  yet  where  an  award  is  made  pursuant 
to  a  submission  so  executed  by  one  partner,  who,  afterwards,  accepts 
the  amount  awarded  on  favour  of  the  partnership,  and  indorses  a  re- 
ceipt in  full  in  the  award,  it  is  sufficient  to  bar  the  co-partnership  claim; 
for  it  operates  either  as  a  release  by  one  partner,  or  as  an  award  and 
satisfaction.  Buchanans  v.  Curry,  19  Johns.  Rep.  137.  The  case  of 
Fletcher  v.  Pollard,  2  Hen.  &  Munf.  .544,. was  a  decison  between  two 
partners  ;  one  of  whom,  after  a  bill  filed  by  the  plaintiff  against  him- 
self and  another  defendant,  also  a  partner,  the  partnership  consisting  of 
three,  made  an  agreement  v;ith  the  plaintiff,  by.  which  all  matters  in 
difference  between  himself  and  the  plaintiff,  relating  to  the  "  co-part- 
nery,"  were  referred  to  referees,  who  made  an  award,  which  was  held 
to  be  binding  between  the  parlies  to  the  agreement  to  refer. 


60 


ONE  PARTNER  BINDING 


binding  upon  the  latter.(/)  This,  indeed,  is  an  excep- 
tion, and  has  never  been  considered  as  impeaching  the 
general  rule. 

But  although  one  partner  cannot,  by  deed,  bring  any 
fresh  burden  upon  his  co-partner,  he  may,  by  deed,  bar 
him  of  a  right  which  they  possess  jointly.  Where  there 
is  a  promise  to  several  jointly,  or  there  are  several  joint 
obligees  or  covenantees,  a  release  by  one  binds  all;(M)(l) 
and,  as  contracts  with  a  partnership  are  made  jointly 
with  all  its  members,  one  may  therefore  defeat  the 
claims  of  the  rest.  In  this  respect  the  law  of  England 
corresponds  with  the  rule  of  the  civil  law,  Acceptilatione 
unius  tollitur  obUgatw;(v)  for  in  the  same  manner  as  a 
payment  of  the  whole,  to  any  one  of  the  creditors,  libe- 
rates the  debtor  against  all,  a  release  by  one,  which 
presupposes  satisfaction,  ought  to  have  the  same  effect. 
This  may  seem  hard;  but  a  deed  implies  a  full  con- 
sideration, which,  in  the  case  of  a  release,  would 
[*61  ]  be  for  the  joint  benefit  of  all  the  partners;  *and 
if  any  prejudice  is  sustained  by  the  misconduct 
of  one,  the  law  imputes  it  to  the  folly  of  the  others,  who 
have  associated  with  a  man  so  neglectful  of  their  in- 
terests.(t^)  Thus,  where  an  action  was  brought  by 
several   partners   as   indorsees  of  a  promissory    note 

{t)  Ex  parte  Mitchell,  14  Ves.  597.  Ex  parte  Hall,  1  Rose,  B.  C, 
2.  Ex  parte  Hodgkinson,  19  Ves.  291.  S.  S.  Coop.  Case,  99. 
See  also  post. 

(m)  Co.  Litt.  232.  a.  Tooker's  Case,  2  Rep.  68,  Bac.  Abr.  Tit.  Re- 
lease, D.  Com.  Dig.  Tit.  Release,  2  Rol.  Abr.  410.  Arton  v.  Booth, 
4  B.  Moore,  194.  Hawkshaw  v.  Parkins.  2  Swanst.  542.  Sheph. 
Touchst.  335.  Per  Lord  Kenyan,  Perry  v.  Jackson,  4  T.  R.  516. 
Stead  V.  Salt,  3  Bingh.  103. 

{v)  Inst.  1.  2.  ff.  de  duob.  reis.  [w)  6  Rep.  25.  a. 


(1)  Pierson  et  al.  v.  Hooker,  3  Johns.  Rep.  68.  Bulkley  et  al.  v. 
Dayton  et  al.  14  Johns.  Rep.  387.  Bruen  v.  Marquand,  17  Johns. 
Rep.  58.  And  though  the  release  be  executed  after  the  dissolution  of 
partnership,  by  a  partner  who  had  no  authority  to  release  more  than 
his  own  moiety  of  the  debt,  the  action  against  the  debtor  is  gone.  Sal' 
man  and  Brown  v.  Davis,  4  Binn.  375.  Napier  v.  Bapelje,  9  Wend. 
Rep.  120.     Smith  V.  Stone,  4  Gill.  &  Johns.  310. 


THE  FIRM  BY  A  RELEASE.  61 

against  th6  defendant  as  indorser,  and  it  appeared  in 
evidence  that  one  of  the  partners  had  discharged  a  prior 
indorser  by  a  deed  of  composition ;  it  was  holden,  that 
such  deed  not  only  bound  the  partnership,  but  operated 
as  a  release  to  the  defendant.(a:)  But,  in  cases  of  gross 
collusion  with  debtors,  where  fraud  manifestly  appears, 
a  court  of  law  will  control  the  legal  power  of  one  part- 
ner to  release  the  debt,  and  in  the  exercise  of  its  equit- 
able authority,  will  set  aside  a  release  granted  by  him.(l) 
A  strong  case  of  fraud  must,  however,  be  clearly  estab- 
lished in  the  particular  instance ;  for  although  it  be  con- 
trary to  agreement  that  the  releasor  should  interfere  in 
the  receipt  or  discharge  of  the  debt  released,  and,  on 
that  account,  his  release  is  improper,  yet,  unless  the 
transaction  be  proved  to  have  been  fraudulent,  the  re- 
lease will  be  effectual  and  binding.(?/)  Where,  therefore, 
two  plaintiffs,  who  were  partners,  instructed  their  attor- 
ney to  proceed  to  trial,  in  an  action  brought  by  them 
against  the  defendant  for  misrepresentation  as  to  their 
solvency ;  and  a  few  days  before  the  trial,  one  of  them 
gave  a  release  to  the  defendant,  without  the  knowledge 
of  or  communication  with  such  attorney,  the  court  re- 
fused to  interfere.(z)  But  it  will  always  be  considered, 
in  what  right  the  release  is  given  by  a  joint  obligee.  If 
he  release  all  actions  in  a  representative  capacity,  a 
joint  bond  in  his  own  right  is  not  discharged,  and  so  vice 


(x)  Ellison  and  others  v.  Dezell,  Bristol  Sum.  Ass.  1811.  Selw.  N. 
P.  (5th  ed.)  362. 

(y)  Arton  v.  Booth,  4  B.  Moore,  192.  See  also  Leghv.  Legh,  1  Bos. 
&  Pul.  447.  Jones  v.  Herbert,  7  Taunt.  421.  Skaife  v.  Jackson,  3 
B.  &C.  421. 

(z)  Furnival  v.  Weston,  7  B.  Moore,  356. 


(1)  Therefore,  one  partner  cannot,  during  the  continuance  of  the 
partnership,  release  a  debt  due  to  the  firm,  in  consideration  of  a  debt 
due  from  himself  individually  ;  and  if  such  appear  to  be  the  fact  on  the 
face  of  the  release,  it  is  void.  Gram  et  al.  v.  CaldwelU  5  Cow.  Rep. 
489.  See  Evernghim  v.  Ensworth,  7  Wend.  Rep.  326.  Hulls  et  al. 
V.  Coe,  4  McCord's  Rep.  136,  contra. 


61 


ONE  PARTNER  BINDING 


versa.(l)  Thus,  in  an  old  case,(a)  A  and  B  took  an 
obligation  from  C,  for  the  payment  to  them  of  a  sum  of 
money,  and  this  was  done  by  them  as  trustees,  and  for 
securing  the  payment  of  legacies  to  younger  children : 
A  brought  an  action  on  this  bond,  to  which  C  pleaded  a 
release  from  B;  but  upon  oyer  it  appeared  that  the  release 

was  of  all  actions  which  B  had  on  his  own  account; 
[  *62  ]  and  in  truth  *B  did  not  know  of  the  taking  of  the 

bond,  nor  was  he  privy  to  the  suit;  and  though 
it  was  objected  that  the  release  of  one  abhgee  discharged 
the  bond,  and  that  it  must  be  on  his  own  account,  yet  it 
was  adjudged  that  the  release  did  not  operate  as  a  bar ; 
for  that  the  words  " on  his  own  accoimt" must  have  been 
inserted  for  some  purpose,  and  could  not  in  this  case  be 
for  any  other,  but  to  distinguish  demands,  which  B  had 
in  his  own  right,  from  those  he  had  in  right  of  or  in 
trust  for  others.  And,  if  A  be  bound  to  B  and  C,  sol- 
vend^  the  moiety  to  B,  and  the  other  to  C,  the  release  of 
one  shall  not  prejudice  the  other;  and  if  there  are  seve- 
ral covenantees  in  the  same  deed,  one  covenantee  will 
not  be  bound  by  a  release  from  the  others.(&) 

A  receipt  for  a  joint  debt  by  one  partner  will  also 
operate  the  discharge  of  the  debtor  against  any  claim 
of  the  other  partner,  where  the  money  in  respect  of 
which  the  receipt  is  given  has  been  ho)ia  fide  paid.  Thus, 
where  on  a  dissolution  of  partnership  it  was  agreed  that 
an  agent  should  receive  the  joint  debts,  and  such  agree- 
ment was  recognised  by  a  debtor  of  the  firm,  but  one  of 
the  firm  afterwards  countermanded  the  agent's  autho- 
rity, and  demanded  payment  of  the  debt,  a  receipt  from 
such  partner  was  held  to  discharge  the  debtor  from 
future  liability.(c)     But  a  receipt  is  only  a  prima  facie 

(a)  Stokes  v.  Stokes,  1  Vent.  35.  1  Lev.  272.  2  Keb.  530.  But  see 
Bayley  v.  Loyd,  7  Mod.  250. 

(b)  Moor,  64. 

(c)  Bristow  V.  Taylor,  2 Stark.  N.  P.  C.  50.  S.  C.  6Mau.  &  Selw.  156. 


(1)  See  Clement  V.  Brush,  3  Johns.  Ca,  180 — a  very  particular  case. 
See  also  Emerson  v.  Knower,  8  Pick.  Rep.  63. 


-      THE  FIRM  IN  LEGAL  PROCEEDINGS.  62 

acknowledgment  that  a  debt  has  been  paid  ;  and  if  it  ap- 
pears to  have  been  obtained  by  fraud,  it  will  not  prevent 
the  creditors  from  suing  their  debtor.  Thus,  in  an  action 
by  two  co-trustees  for  money  had  and  received  to  their 
use,  the  defendant  produced  a  receipt  for  the  amount 
given  by  one  of  the  plaintiffs :  on  the  part  of  the  plain- 
tiffs, evidence  was  admitted  to  show  that  the  giving  the 
receipt  was  a  fraudulent  transaction,  and  that  the  money 
had  not  been  paid,  and  the  plaintiffs  recovered.(<?) 

Payment  to  one  partner  is  also  payment  to  all,  and 
will  entail  upon  each  the  obligation  of  refunding  if  the 
payment  was  lawful.  Therefore,  when  one  of  two  part- 
ners, being  about  to  dissolve  partnership,  took  a 
warrant  of  attorney  to  himself  *alone  from  a  [*63] 
debtor,  to  secure  the  payment  of  a  debt  to  the 
partnership,  by  instalments,  and  he,  after  the  debtor  had 
committed  an  act  of  bankruptcy,  and  after  the  dissolu- 
tion of  partnership,  received  part  of  such  a  debt,  and 
died  after  the  commission  was  sued  out ;  it  was  held, 
that  the  surviving  partner,  in  the  absence  of  any  evi- 
dence of  his  being  exonerated  by  the  terms  of  the  dis- 
solution, was  liable  to  repay  to  the  assignees  of  the 
debtor  the  money  so  received  after  his  bankruptcy.(e) 
And,  on  the  principal  of  payment  to  one  being  payment 
to  all,  an  acknowledgment  of  payment  by  one  partner  is 
conclusive  evidence  against  the  demand  of  another. 
Therefore,  where  in  the  case  of  a  particular  partnership, 
in  which  two  different  houses,  one  in  London^  the  other 
abroad,  agreed  to  share  profits  of  mutual  consignments, 
recommended  to  each  by  the  other ;  the  house  abroad 
having  acknowledged  the  receipt  and  subsequent  sale  of 

(d)  Skaife  v.  Jackson,  3  B.  &  C.  421.  And  see  Henderson  v.  Wild, 
2  Campb.  561. 

(e)  Biggs  V.  Fellows,  8  B.  &  C.  402.  S.  C.  2  Man.  &  Ryl.  450. 
A  rule  nisi  for  entering  a  nonsuit  in  an  action  of  trover  between  the 
same  parties,  for  the  value  of  goods  delivered  after  the  act  of  bank- 
ruptcy, and  before  the  dissolution  of  partnership,  was  discharged, 
without  calling  upon  the  counsel  for  the  plaintiff;  the  delivery  of  the 
goods  being  originally  to  the  two  partners,  and  the  custody  and  the  in- 
terest continuing  unchanged  down  to  the  time  of  the  tinal  conversion 
by  sale. 

12 


63  ONE  PARTNER  BINDING 

goods,  consigned  to  them  by  a  third  party,  at  the  recom- 
mendation of  the  London  house,  the  latter  advanced 
money  to  the  consignor,  expecting  to  be  repaid  by  the 
house  abroad,  but  on  the  failure  of  that  house  brought 
an  action  against  the  consignor  to  recover  the  advances 
which  had  been  made  by  them ;  it  was  held,  that  as  the 
participation  in  the  profits  constituted  a  partnership  be- 
tween the  two  houses  quoad  hoc,  the  acknowledgment  of 
the  receipt  and  sale  of  the  goods,  consigned  by  the 
house  abroad,  was,  in  effect,  a  receipt  by  the  house  in 
London,  and  therefore  that  the  advance  of  money  was 
merely  a  payment  of  money,  for  which  they  were  pre- 
viously accountable.(/^) 

Independently  of  commercial  transactions,  one  part- 
ner may  bind  another  in  legal  proceedings.  Partners 
being  identified  in  interest,  the  acts  and  admissions  of 
any  one,  with  reference  to  the  common  object,  are  the 
acts  and  declarations  of  all,  and  are  binding  upon  all.(l) 
Therefore,  until  the  late  act  of  parliament,  which  re- 
quires a  written  memorandum  to  take  any  case  out  of 
the  operation  of  the  statute  of  limitations,(^)  (2) 
[  *64  ]  where  there  was  a  *  joint  and  several  engage- 
ment for  the  payment  of  money,  an  acknowledg- 
ment by  one  of  the  debtors  of  its  existence  was  held 
sufficient  to  deprive  the  others  of  the  benefit  of  a  plea 

(/)  Cheap  V.  Cramond,  4  B.  &  A.  663. 

(g")  9  Geo.  4.  c.  14.  §  1,  which  enacts,  that  where  there  shall  be 
two  or  more  joint  contractors,  or  executors,  or  administrators  of  any 
contractor,  no  such  joint  contractor,  executor,  or  administrator,  shall 
lose  the  benefit  of  the  21  Jac.  1.  c.  16.  (statute  of  limitations),  so  as  to 
be  chargeable  in  respect,  or  by  reason  only,  of  any  written  acknow- 
ledgment or  promise,  made  and  signed  by  any  other  or  others  of 
them. 

(1)  Corps  V.  Rohinso7i  et  al  2  Wash.  C.  C.  Rep.  388.  Bound  et  al. 
V.  Lathrop,  4  Conn.  Rep.  336.  Fiak  v.  Copeland,  Overt.  Rep.  383. 
Per  Parker,  C.  J,  Odiorne  v.  Maxcy,  15  Mass.  Rep.  44. 

(2)  Per  Story,  J.  1  Gallis.  Rep.  635.  Johnson  v.  Beardlee  ef.al. 
15  Johns.  Rep. 4.  Bound  etal.  v.  Lathrop,  4  Conn.  Rep.  336.  2  Pick. 
Rep.  583.  The  acknowledgment  will  be  binding  although  made  after  dis- 
solution of  the  partnership.  Shelton  v.  Cocke  et  al.  3  Munf.  191. 
Smith  V.  Walker  et  al.  6  Johns  Rep.  267.  Ward  v.  Howell,  5  Harr. 
<fc  Johns.  60.     Hopkins  \.  Banks  et  al.  7  Cow.  Rep.  650.     J^Jliite  v. 


THE    FIRM    IN    LEGAL    PROCEEDINGS.  64 

of  that  statute.(A)  It  is  clear  that  such  an  acknowledg- 
ment made  by  an  individual  debtor  would  have  revived 
the  debt  against  him,  and  there  could  be  no  ground  for 
distinguishing  between  the  case  of  one  and  many  debtors, 
where  only  one  of  them  made  the  acknowledgment ;  for 
the  party  from  whom  the  acknowledgment  proceeded 
could  not  deny  the  existence  of  the  debt,  and  if  the  ac- 
knowledgment of  one,  where  only  one  was  sued,  would 
prevent  the  operation  of  the  statute  of  limitations,  so  also 
would  the  acknowledgment  of  one  where  many  were 
sued.  To  hold  otherwise  would  have  been  to  establish 
an  anomaly  in  the  law,  because  in  other  cases  an  ac- 
knowledgment by  one  of  many,  who  are  jointly  concern- 
ed, is  binding  on  the  rest.(i)  That  doctrine  has  been 
applied  to  acknowledgments  in  cases  of  trespass,  conspi- 
racy, and  other  offences,  up  to  high  treason. (^)  It  fol- 
lows, therefore,  that  admissions  by  one  partner  must  be 
governed  by  the  same  principle,  and  that  they  will  be 
binding  on  the  firm.  And  even  after  a  dissolution  of  the 
partnership,  the  admission  of  one  partner  is  binding 
upon  his  co-partner  if  it  relate  to  a  transaction  which 
occurred  during  the  existence  of  the  partnership;  for, 

(A)  Whiteomb  v.  Whiting,  Dougl.  651.  Perry  v.  Jackson,  6  T.  R. 
516.  Perhain  v  Kaynal,  2  Bingh.  306.  ace.  But  see  Bland  v.  Hasel- 
rig,  2  Ventr.  151,  contra,  and  the  observations  of  the  Judges  in  deliver- 
ing judgment  on  the  cases  of  Atkins  v.  Tredgold,  2  B.  &  C.  23.  and 
Brandram  v.  Wharton,  1  B.  &;  A.  463.  See  also  Grant  v.  Jackson, 
Peake's  N.  P.  C.  202,,  and  post,  where  this  subject  is  more  fully  ex- 
plained. 

(i)  Vicary's  case,  Bac.  Abr.  Tit.  Evidence,  623.  S.  C.  G.  Evid.  51. 

{k)  See  1  Phill.  on  Evid.  96,  et  seq. 

Hall,  3  Pick.  Rep.  291.  ./Jws/m  v.  Bosiivick,  9Conn.  Rep.  496.  Pat- 
terson V.  Shoate,  7  Wend.  Rep.  441.  Unless  the  acknowledgment  be 
made  with  a  vie\v  to  the  advantage  of  the  party  making  it,  to  a  party 
who  has  notice  of  his  object.  Coit  v.  Tracy,  8  Conn.  Rep.  268  ; 
9  Conn.  Rep.  1.  A  different  doctrine  prevails  in /'eunsy/uam'a  and 
Kentucky.  In  those  States  it  has  been  decided  on  solemn  argument, 
that  after  the  dissolution  of  a  partnership,  one  partner  cannot,  by  his 
acknowledgment,  revive  a  partnership  debt,  so  as  to  deprive  the  others 
of  the  benefit  of  the  statute  of  limitations.  Levy  v.  Cadet,  17  Serg.  <fe 
Rawle,  126.  Searight  v.  Craighead,  1  Penns.  Rep.  135.  Hell  \. 
Morrison,  Peter's  Sup.  C.  Rep.  352.  See  as  to  South  Carolina, 
Ktsher's  Ex.  v.  Tucker's  Ex.  1  McCord's  Cha.  Rep.  170. 


64 


ONE  PARTNER  BINDING 


with  regard  to  things  past,  the  partnership  is  not  dis- 
solved, but  only  with  respect  to  things  future.(/)  (1) 
Thus,  when  the  creditor  of  a  partnership,  in  discharge 
of  a  demand  against  himself,  assigned  to  a  third  person 
the  debt  owing  to  him  by  the  firm,  it  was  determined 
that  a  verbal  promise,  by  one  of  the  partners,  to  pay 
such  debt  to  the  assignee,  was  not  within  the  statute  of 

frauds;  for  it  was  not  an  undertaking  for  the 
[  *65  ]  debt  of  ^another,  the  old  debt  being  extinguished 

and  a  new  one  created :  and  that  the  promise 
bound,  not  only  the  party  who  made  it,  but  the  whole 
partnership,  even  though  some  of  the  members  of  the 
firm  had  retired  before  the  promise  was  given  ;  provided 
the  debt  to  which  it  had  reference  arose  out  of  joint 
contracts,  entered  into  whilst  they  continued  in  the 
partnership.(m)  But  to  aflect  the  ex-partners,  after  a 
dissolution,  the  admission  of  the  single  partner  must 
clearly  refer  to  a  liability  created  pending  the  partner- 
ship ;  since,  if  it  relate  to  a  transaction  which  has  occur- 
red since  the  separation,  it  is  not  evidence  to  charge 
them.(?i)  (2)    Neither  is  a  declaration  made  by  one  of 

(/)  Wood  i;.Bra(ldick,  1  Taunt.  104. 

(m)  Lacy  v.  McNeile,  4  Dowl.  &  Ryl.  13. ;  and  see  Israel  v.  Doug- 
las, 1  H.  Bl.  239.  Wilson  v.  Coupland,  5  B.  &  A.  228.  Wharton  v. 
Walker,  4  B.  &  C.  163. 

(n)  Wood  V.  Braddick,  supra. 


{!)  Per  Story,  J.,  1  Gallis.  Rep.  635,  636,  citing  Wood  v.  Braddick. 
^cc.  3  Hayw.  Rep.  310,  311.  Simpson  et  al.  v.  Geddes,  2  Bay's  Rep. 
533.  Parker  v.  Merrill,  6  Greenl.  Rep.  41.  Contra.  Shelton  v. 
Cocke  et  al.  3  Munf.  191.  Bootes  v.  Welford  fy  Co.  4  Munf.  215. 
Mercer  v.  Sayre  et  al.  Anth.  N.  P.  Rep.  119.  Hackley  v.  Patrick,  3 
Johns.  Rep.  536.  Walden  v.  Sherburne  et  al.  15  Johns.  Rep.  409. 
Brisban  v.  Boyd,  4  Paige's  Cha.  Rep.  17— denying  the  rule  laid  down 
in  IVood  V.  Braddick.  See  also  Chardon  v.  Oliphant,  2  Const.  Ct. 
Rep.  685.  Cadet  v.  Levy  17  Serg.  &  Rawle,  126.  Bell  v.  Morrison, 
1  Peter's  Sup.  Ct.  Rep.  352.  Fisher's  Ex.  v.  Tucker's  Ex.  1  McCord's 
Cha.  Rep.  170. 

(2)  A  partnership  consisting  of  A.  &  B.  held  a  note  against  C.  dated 
December  ^\st,  1811,  for  the  payment  of  1074  dollars,  and  interest. 
On  the  2d  oi  July,  1812,  C.  paid  to  B.  375  dollars,  which  B.  promised 
to  indorse  on  C.'s  note,  but  neglected  so  to  do.  On  the  20th  December, 
1816,  after  dissolution  of  the  partnership  of  A.  &  B.,  A.  gave  a  writing, 
signed  with  his  individual  name,  to  C,  acknowledging  that  he  had  re- 


THE    FIRM    IN    LEGAL    PROCEEDINGS.  65 

two  partners,  during  an  existing  co-partnership,  evidence 
to  bind  his  partner  as  to  a  transaction  which  occurred 
previous  to  the  partnership,  unless  a  joint  responsibihty 
be  proved  as  a  foundation  for  such  evidence.(o)  In  an 
action  by  a  firm  upon  a  contract  made  with  one  partner, 
his  declaration,  that  the  property,  which  formed  the  sub- 
ject matter  of  the  contract,  belonged  to  himself  individ- 
ually, and  had  been  allotted  to  him  out  of  the  partnership 
stock,  is  evidence  against  the  firm,  and  will  prevent  their 
maintEiining  a  joint  action  for  a  breach  of  it.(;?)  And 
we  have  seen  that  one  partner  is  competent  to  release  a 
supposed  right  of  action,  even  after  proceedings  to  en- 
force it  have  been  instituted  by  the  firm.^q)  And  as  he 
may  release  an  action,  it  seems  to  follow  that  he  has  the 
power  of  suspending  proceedings  in  it.  Therefore, 
where  three  partners  sued  as  plaintiffs,  and  two  out  of 
the  three  agreed  with  the  defendant  to  accept  common 
bail,  and  stay  proceedings  for  six  weeks,  it  was  held 
that  this  agreement  was  binding  on  the  third 
partner.(r)     So,  where  several  are  ^concerned  [  *66  ] 

(o)  Catt  V.  Howard,  2  Stark,  on  Evid.  45.  S.  C.  3  Stark.  N.  P.  C.  3. 

(p)  Lucas  V.  Delacour,  1  Maul  &  Selw.  249. 

{q)  See  wite  p.  61.,  and  Furnival  v.  Weston,  7  B.  Moore,  356. 

(r)  Harwood  and  others  v.  Edwards,  Trin.  13  Geo.  2.  B.  R.  MSS. 
In  this  case  the  plaintiffs,  who  were  the  two  Flarwoods  and  Skipp, 
were  partners  in  the  trade  of  brewers.  It  was  stipulated  by  the  articles, 
that  Skipp  was  to  be  cash-keeper  and  receive  the  debts,  but  the  Har- 

tained  in  his  hands  the  money  of  C.  to  the  amount  due  on  the  note, 
and  promising  to  refund  to  C.  such  sum  as,  in  a  suit  then  pending  on 
the  note,  the  Court  should  find  to  have  been  paid  thereon.  The  money 
so  retained  by  A.  had  been  paid  to  him  as  a  member  of  the  partnership 
of  A.  &L  B.  for  the  use  of  the  late  firm,  in  pursuance  of  the  agreement 
of  A.  contained  in  his  writing  of  the  16th  December,  1816.  The  suit 
on  the  note  was  withdrawn.  C.  then  brought  an  action  of  indebitatus 
assumpsit  for  money  had  and  received,  against  A.  &  B.  jointly,  to  re- 
cover back  375  dollars,  as  so  much  money  overpaid.  Held,  that  the 
action  was  well  brought ;  and  that  the  writing  given  by  A.  in  Decem- 
ber, 1816,  was  admissible  in  evidence,  and  properly  constituted  a  part 
of  the  plaintiffs  case,  and  that  the  plaintiff  was  not  precluded  from 
recovering  back  money  paid  under  the  circumstances,  on  the  ground 
the  payment,  at  the  time,  was  voluntary.  Story  v.  Barrell  Sf  Gilbert, 
2  Conn.  Rep.  665.  One  of  the  Judges  (Hosmer,  afterwards  Chief 
Justice,)  dissented,  upon  grounds  which  appear  to  the  Editor  to  be 
conclusive. 


66 


ONE    PARTNER    BINDING 


together  in  partnership,  notice  to  one  partner  is  equiva- 
lent to  notice  to  all  of  them,  if  the  transaction,  in 
respect  of  which  the  notice  is  given,  be  bona  fide.{s)  (1) 
And  notice  given  by  one  partner  is  available  as  a  notice 
by  the  firm.  Hence,  if  one  of  several,  jointly  interested 
in  a  cargo,  effect  an  insurance  for  the  benefit  of  all,  he 

woods  appointed  another  person  for  that  purpose.  The  defendant  was 
a  debtor  to  the  partnership,  and  Skipp  brought  the  action  against  him 
in  the  name  of  himself  and  the  Harwoods,  but  without  their  knowledge 
or  consent.  The  Harwoods  afterwards  signed  an  agreement  with  the 
defendant  to  accept  common  bail  and  stay  proceedings  for  six  weeks; 
and  upon  motion  to  file  common  bail  and  stay  proceedings  accordingly, 
the  question  was,  whether  the  act  of  two  of  the  partners,  in  entering 
into  such  an  agreement,  was  binding  on  the  other,  it  being  stipulated  in 
the  articles  that  one  should  not  release  or  give  credit  without  all.  Lee 
C.  J.  "I  do  not  see  how  we  can  enter  into  any  stipulation  in  the  arti- 
cles between  these  partners,  but  we  must  consider  the  question  as  ab- 
stracted from  the  articles  altogether,  and  as  an  agreement  by  two  of  the 
partners.  A  release  by  one  will  be  a  discharge  in  personal  actions,  and 
every  one  has  a  right  to  the  whole  personalty ;  and  if  one  has  power 
to  release,  why  may  not  one  suspend  these  proceedings  ?  Here  is  an 
agreement  by  two :  they  may  discharge  the  suit,  but  they  have  only 
delayed  the  proceedings.  If  one  can  discharge,  the  majority  have 
power  to  suspend."  ProbynJ.  "It  is  the  common  justice  of  this 
court,  if  the  plaintiff'  makes  an  agreement,  to  compel  him  to  perform 
it.  Here  are  three  plaintiff's ;  one  promotes  the  action,  two  dissent  or 
are  ignorant  of  it,  and  these  two  agree  to  accept  common  bail  and  stay 
proceedings,  and  they  are  as  much  plaintiffs  as  the  other  one.  I  am 
of  opinion  this  agreement  is  good,  and  the  court  will  stay  proceedings 
pursuant  to  the  agreement.  Every  partner  may  make  an  agreement  to 
bind  the  other  partners,  and  therefore  the  majority  may  bind  the  mi- 
nority." Cha}yple  J.  "  The  dispute  upon  the  articles  of  co-partnership 
is  in  the  Court  of  Chancery.  The  defendant  applies  for  the  benefit  of 
his  agreement  with  the  plaintiffs.  The  act  of  one  partner  is  the  act  of 
all ;  this  suit  must  be  considered  as  brought  by  all,  and  this  agreement 
must  be  taken  to  be  the  agreement  of  all."  The  rule  was  made  abso- 
lute. 

(s)  Per  Lord  Ellenborough,  in  Bignold  v.  Waterhouse,  1  Mau.  & 
Selw.  259.  Porthouse  v.  Parker,  1  Campb.  82.  Alderson  v.  Pope, 
lb.  408. 


(1)  CHlley  et  al.  v.  Singleton,  3  Littel's  Rep.  249,  See  Cowans  \. 
Jackson,  20  Johns  Rep.  176,  and  compare  the  case  with  Porthouse  v. 
Parker.  Watson  v.  Welles,  5  Conn.  Rep.  468.  See  also  Hart  v. 
Palmer,  12  Wend.  Rep.  523.  The  rule  is  the  same,  though  the  busi- 
ness be  carried  on  in  the  name  of  one  partner  only.  Lansing  v. 
McKillup.  7  Cow.  Rep.  416. 


THE    FIRM    BV    A    SUBMISSION    TO    ARBITRATION.  66 

may  give  notice  of  abandonment  for  all.(^)  It  has  been 
decided,  that  a  note  for  the  weekly  payment  under  the 
Lords'  Act  may  be  signed  by  one  member  of  a  firm  for 
himself  and  his  partner(M)  :  and  such  a  note  will  be  good 
and  obligatory  upon  a  retiring  partner,  if  given  after  he 
has  seceded,  where  the  deed  of  dissolution  empowers  the 
remaining  partners  to  use  his  name  in  the  prosecution 
of  all  suits.(i^*)  (1). 

The  entering  into  a  submission  to  refer  to  arbitration 
forming  no  part  of  the  ordinary  concerns  of  a  commer- 
cial partnership,  one  partner  has  not  an  implied 
authority  to  bind  his  co-partners  *by  such  a  sub-  [  *67  ] 
mission,  even  though  it  be  of  matters  arising  out 
of  the  common  business.  Indeed  if  such  a  delegation 
of  authority  by  one  partner  had  a  binding  operation  on 
the  firm,  the  arbitrators  might,  by  their  award,  call  upon 
the  partners  to  do  acts,  which  by  law  they  could  not  be 
compelled  to  perform.  Therefore,  where  a  firm,  con- 
sisting of  five  persons,  sued  a  debtor  to  them,  and  the 
defendant,  who  pleaded  the  general  issue,  put  in  an 
award  upon  the  matter  touching  which  the  action  had 
been  brought,  but  it  appeared  that  the  submission  was 
signed  by  no  more  than  three  of  the  partners,  and  there 
was  nothing  to  show  that  they  had  an  express  authority 
to  bind  the  others  to  it,  the  Court  of  Common  Pleas 
held,  that  the  submission  was  insufficient,  and  the  award 
made  upon  it,  no  bar  to  the  action.(z^;)     But  although 

(/)  Hunt  V.  Royal  Exchange  Assurance  Com.,  5  Mau.  &  Selw.  47. 
Where  joint  lessors  are  partners  in  trade,  a  notice  to  quit  in  the  names 
of  all,  signed  by  one  only  is  valid.  Doe  d.  Elliott  and  others  v.  Hulme, 
2  Mann.  <fc  Ryl.  433. 

(u)  Meux  V.  Humphry,  8  T.  R.  25.     Dove  v.  Hogg,  1  N.  R.  306. 

(v)  Burton  V.  Issit,  5  B,  &  A.  267. 

(w)  Stead  v.  Salt,  3  Bingh.  101.  Where  an  award  is  offered  in  evi- 
dence, the  execution  of  the   submission  deed  by  all  parties  must  be 

(1)  One  of  two  joint  plaintiffs,  who  had  formerly  been  partners, 
having  agreed  that  the  action  should  be  discontinued,  the  other  made 
affidavit  that  the  cause  of  action  was  a  debt  due  to  tlie  partnership;  and 
that  the  agreement  was  made  to  defraud  him  by  collusion  between  his 
co-plaintiff  and  the  defendant.  And  thereupon  the  court  refused  to 
order  a  nonsuit.     Loring  et  at.  v.  Brackctt,  3  Pick.  Rep.  403. 


67  ONE  PARTNER  BINDING 

one  partner  cannot  qua  partner  bind  his  co-partners  to 
the  performance  of  an  award  made  on  a  submission  of 
partnership  matters,  yet  if  by  the  submission  he  engage 
that  they  shall  perform  the  award,  he  will  be  answera- 
ble for  their  obedience  to  it.  Thus,  where  one  partner, 
on  the  behalf  of  himself  and  his  co-partner,  referred  all 
differences  between  the  plaintiff  and  them  to  arbitrators, 
and  promised  to  perform  their  award,  which  was  that 
all  suits  against  such  partner  should  cease,  and  that  he 
should  pay  a  certain  sum;  an  action  being  brought  for 
the  non-performance  of  the  award,  it  was  objected  that 
the  other  partner  was  not  made  a  party  to  the  submis- 
sion :  but  the  court  said,  the  defendant  may  undertake 
for  his  partner,  and  having  engaged  for  him,  and  promised 

that  he  should  perform  the  award  on  his  part, 
[  *68  ]  notwithstanding  the  other  partner  is  *not  bound ' 

so  to  do,  yet  if  he  refuse,  it  is  a  breach  of  the  de- 
fendant's promise.(x) 

One  partner  may,  in  proceeding  under  the  bankrupt 
lavjs,  effectually  bind  his  co-partners.  Thus,  although  a 
commmission  of  bankruptcy,  which  purports  to  issue  on 
the  petition  of  one  only  of  two  partners,  cannot  be  sup- 
proved,  since  the  submission  of  the  rest  is  the  consideration  to  each 
party  to  submit  himself  to  arbitration.  Thus,  where  there  had  been  a 
deed  of  reference  between  a  creditor  and  several  partners  of  all  co- 
partnership accounts,  and  of  all  matters  in  difference  between  the  par- 
ties or  any  two  of  them,  and  an  action  of  trover  was  afterwards  brought 
by  the  creditor,  the  assignee  under  a  commission  of  bankruptcy  of  one 
of  the  partners,  (in  which  action  the  plaintiff  produced  the  award  and 
deed  of  reference  as  evidence  of  a  separate  debt  due  to  him  from  the 
bankrupt,)  the  Court  of  King's  Bench  held,  that  it  was  indispensably 
necessary  to  prove  the  execution  of  the  deed  by  all  the  parties ;  for 
this  was  a  reference  of  the  aggregate  accounts  between  all  and  each  of 
the  partners,  and  the  consideration  to  each  for  entering  into  the  submis- 
sion was,  that  each  parly's  account  should  be  liquidated,  not  only  as  to 
one,  but  as  to  all:  the  accession  of  all,  therefore,  ought  to  be  proved  ; 
and,  without  such  proof,  the  arbitrator  would  not  appear  to  have  com- 
petent authority  to  decide  the  whole  question  between  the  parties.  An- 
tram  v.  Chase,  15  East,  209. 

(x)  Strangford  v.  Green,  2  Mod.  228.  In  Com.  Dig.  Arbitrament, 
D.  2,  it  is  laid  down,  •'  If  there  be  a  controversy  between  A  of  the  one 
part,  and  B  and  C  of  the  other,  and  B  submits  for  himself  and  C,  and 
there  be  an  award  that  B  shall  pay ;  this  is  good,  though  C  be  a  stran- 
ger." 


THE  FIRM  IN  BANKRUPTCY.  68 

ported,  because  where  the  debt  is  due  to  a  partnership, 
it  must  appear  that  all  the  partners  to  whom  it  is  due 
concur  in  the  proceeding ;(y)  yet,  if  the  commission  it- 
self profess  to  have  been  awarded  at  the  instance  of  all 
the  partners,  it  will  be  valid,  notwithstanding  the  affida- 
vit grounding  it,  and  the  bond  to  the  Lord  Chancellor^ 
were  made  and  executed  by  one  partner  only  on  behalf 
of  the  firm.(z)     One  partner  may  also  prove  a  joint 
debt  under  the  commission,  or  singly  vote  in  the  choice 
of  assignees ;  or  he  may,  by  a  power  of  attorney  exe- 
cuted by  himself,  on  behalf  of  the  firm,  authorise  a  third 
person  to  represent  and  act  for  the  partnership  in  these 
respects.(a)     So,  one   partner,  without   consulting   the 
other  members  of  the  firm,  may  sign  a  bankrupt's  certi- 
cate,  either  during  the  continuance  of  the  partnership  or 
after  a  dissolution,  upon  a  debt  proved  during  the  sub- 
sistence of  the  partnership.(6)     In  fact,  to  most  import- 
ant purposes,  the  act  of  one  partner  is,  in  bankruptcy, 
to  be  considered  as  the  act  of  all.(c)  (1)     Where  one 
of  two  partners  became  a  bankrupt,  a  commission  issued 
against  a  debtor  to  the  firm  on  the  petition  of  the  sol- 
vent partner  alone,  in  the  character  of  and  as  one  of 
the  assignees  of  his  bankrupt  partner,  has  been  held  to 
be  regular,  though  the  other  assignees  did  not  join  in 
the  affidavit  and  petition.((/ )  (2). 

{y)  Buckland  v.  Newsame,  1  Taunt.  477.  But  see  Ex  -parte  Bla- 
key,  I  Glyn  &  James.  197. 

{z)  Ex  parte  Hodgkinson,  19  Ves.  291.  S.  C.Cooper's  Ca.  99.  Ex 
j3.  Roberts,  lb.  102.     i?x/).  Peele,  Buck.  457.    jEx /J.  Morton,  lb.  44. 

(a)  Ex  parte  Mitchell,  14  Ves,  597. 

\b)  Ex  parte  Hall,  1  Rose,  2.     S.  C.   17  Ves.  62. 

(c)  Per  Lord  Eldon,  Ex  parte  Hodgkinson,  supra.  Ex  parte  Mor- 
gan, Buck.  109.  The  general  order  of  the  12lh  August,  1809,  requires 
that,  in  cases  of  partnership,  all  petitions  in  bankruptcy  shall,  before 
they  are  presented,  be  signed  by  one  of  ihe  partners;  and,  upon  this 
branch  of  the  order,  it  has  been  held,  that  a  petition  signed  by  one 
partner  in  the  partnership  name  is  not  sufficient.  Ex  parte  Hall,  1 
Glyn  &,  James.  355.  n.  (a). 

U)  Ex  parte  Blakey,  1  Glyn  &  James.  197.    Where  there  is  only 


(1)  A  petition  subscribed  by  one  of  two  partners,  without  any  oihcr 
than  the  general  authority  arisinc  from  the  partnership,  has  been  held 
to  be  a  legal  ground  for  issuing  a  commission.  Pleasants  v.  3Jeng,  1 
Dall.  Rep.  380. 

(2)  See  Kyle  v.  Connelly,  3  Leigh's  Rep  719. 

13 


69 


LEGAL  REMEDIES 


^SECTION  III. 

Legal  Remedies  hetweeyi  Partners. 

Having  considered  in  what  cases  one  partner  has  the 
power  of  binding  his  co-partners  Mdthout  their  express 
acquiescence,  we  will  now  proceed  to  inquire,  what 
remedies  partners  have,  as  between  each  other,  for  the 
vindication  of  rights  when  violated  by  one  who  sustains 
the  character  of  a  partner.  These  may  be  divided  into 
actions  at  law,  and  suits  in  equity.  We  will,  in  the  first 
place,  ascertain  what  are  the  existing  legal  remedies. 
At  law,  there  are  several  actions  which  it  is  competent 
to  a  partner  to  bring  against  persons  who  are  jointly 
engaged  with  him  in  trade.  The  actions  of  account, 
covenant,  assumpsit,  and  trover,  are  severally  adapted  to 
the  adjustment  of  partnership  differences ;  and  these  we 
will  consider  separately,  and  in  the  order  they  have  been 
arranged. 

The  action  of  account  has  in  a  great  measure  fallen 
into  disuse,(l)  a  preference  of  late  years  being  given  to 

one  petitioning  creditor,  there  must  be  a  debt  due  to  him  separately,  for 
which  he  could  maintain  an  action  at  law ;  therefore,  one  of  two  joint 
obligees  is  not  by  himself  a  good  petitioning  creditor  against  the  obli- 
gor, Buckland  v.  Newsame,  1  Taunt.  477.  1  Camp.  474;  and,  so  on 
the  other  hand,  where  one  of  three  partners  undertook  to  provide  for 
bills  of  exchange  drawn  by  the  three,  such  acceptances  were  holden 
not  to  support  a  commission  on  a  petition  of  the  three  against  the  ac- 
ceptor. Richmond  v.  Heapy,  1  Stark.  N.  P.  C.  202.  Sparrow  v. 
Chisman,  9  B.  &  C.  241. 


(1)  Account  Bender  has  been  constantly  brought  in  Pennsylvania, 
and  very  liberally  extended  to  meet  the  various  cases  arising  from  the 
transactions  between  partners.  There  would  have  been  no  remedy  un- 
less this  had  been  the  case,  there  being  no  Courts  of  Equity  in  the  State. 
James V.  Brotvn,  1  Dall.  339.  The  Act  of  16th  June,  1836,  "relating 
to  the  jurisdiction  and  power  of  Courts,"  (Sect.  13,)  gives  the  Supreme 
Court  and  tlie  several  Court?  of  Common  Pleas  "  the  Supervision  and 
control  of  partnerships."     Pamp.  Laws,  784. 


BETWEEN  PARTNERS.  69 

the  mode  of  proceeding  by  bill,  in  a  court  of  equity, 
where  a  discovery  by  the  defendant's  answer  upon  oath 
may  be  obtained.(l)  It  will  therefore  only  be  necessary 
briefly  to  advert  to  the  nature  of  the  action.  By  the 
common  law,  the  action  of  account  might  be  maintained 
against  a  bailiff  or  receiver,(a)  and  in  favour  of  trade 
and  commerce,  by  one  merchant  against  another.  But 
because  the  account  rested  in  privity,  executors  could 
not  in  general  sustain  such  an  action  :(b)  how  ever  this 
was  remedied  by  the  Stat.  Westm.  2,(c)  which  gave  the 
action  to  executors,  and  according  to  Lord 
Coke^d)  the  stat.  of  31  Edw.  3,  stat.  1,  *c.  11,  gave  [  *70  ] 
it  to  administrators.  The  stat.  25  Edw.  3,  stat. 
5,  c.  5,  has  extended  the  same  remedy  to  the  executors 
of  executors. (2)  So  at  the  common  law,  this  action  did 
not  lie  against  the  executors  of  the  accountant ;  but  by 
stat.  4  Ann.  c.  16,  s.  27,(3)  an  action  of  account  may 
be  maintained  against  the  executors  or  administrators 
of  a  guardian,  bailiff",  or  receiver.  The  relation  of  part- 
ners has  always  been  considered  a  sufficient  privity  to 
give  them  the  action  of  account  ;(4)  and  it  is  laid  down 

(a)  Co.  Liu.  172,  a. 

(b)  Sed  vide  F.  N.  B.  117.  11  Rep.  90,  a. 

(c)  13  Edw.  1,  stat.  1,  c.  23. 

{d)  Co.  Litt.  89,  b.  2.  Instit.  404. 


(1)  The  reason  given  can  hardly  be  deemed  a  sufficient,  or,  indeed, 
the  true  one ;  for  auditors,  as  Chancellor  Kent  has  observed,  suggest- 
ing, at  the  same  time,  that  he  could  not  discern  any  good  reason  why 
the  action  of  account  had  so  totally  fallen  into  disuse,  (in  New  Fork,) 
have  all  the  requisite  powers  ; — they  can  compel  the  parties  to  account, 
and  be  examined  under  oath.  Duncan  v.  Lyon,  3  Johns.  Cha.  Rep. 
361.  The  power  of  controlling  either  partner  by  injunction,  and  the 
benefits  to  be  derived  from  the  appointment  of  a  receiver,  after  a  disso- 
lution of  partnership  is  a  more  satisfactory  ground  for  its  prevalence  in 
England. 

(2)  These  statutes  are  in  force  in  Pennsylvania.  Report  of  the 
Judges.  3  Binn.  599.  Roberts''  Dig.  11,  250,  249. 

(3)  The  first  thirteen  sections  are  in  force  in  Pennsylvania.,  and  the 
20ih  and  27th  sections.  Roberts'  Dig.  43.  Griffith  v.  Willing  et  al. 
3  Binn.  317. 

(4)  Griffith  v.  Willing  et  al.  3  Binn.  317.  Duncan  v.  Lyon,  3 
Johns.  Cha.  Rep.  361. 


70 


LEGAL  REMEDIES 


by  Lord  Coke,[e)  that  if  two  joint  merchants  occupy 
their  stock,  goods,  and  merchandise  in  common,  to  their 
common  profit,  one  of  them,  naming  himself  a  merchant, 
shall  have  an  account  against  the  other,  naming  him  a 
merchant,  and  shall  charge  him  as  receptor  denariorura 
ipsius  B,  ex  guacwKjfue  causa  et  contractu  ad  communem 
utilittitem  ipsorum  A  et  B,  provcnieii'  sicut  per  legem  mer- 
catoriam  rationahiliter  monslrare  poter>'t.(^\)  There  are 
two  judgments  in  this  action :  the  first  judgment  is,  that 
the  defendant  do  account,(/)  usually  termed  a  judgment 
quod  computet;  this  is  in  the  nature  of  an  award  of  the 
court,  interlocutory  only  and  not  definitive  ;(^)  (2)  and 
after  such  a  judgment,  the  defendant  usually  ofliering  to 
account,  the  court  assigns  auditors  to  take  and  declare 
the  account  between  the  parties.  If  the  defendant  be- 
fore the  auditors(A)  plead  any  matter  in  discharge, 
which  is  denied  by  the  plaintiff,  so  that  the  parties  are 
at  issue,  the  auditors  must  certify  the  record  to  the 
court,  who  thereupon  will  award  a  venire  facias  to  try 
it  ;(3)  and  if  on  the  trial  the  plaintiff  make  default,  he 
will  be  nonsuited ;  but,  notwithstanding  the  nonsuit,  he 
may  bring  a  sci?'e  facias  upon  the  first  judgment.  The 
final  or  second  judgment  in  account  is,(i)  that  the  plain- 
tiff do  recover  against  the  defendant  so  much  as  he,  the 
defendant,  is  found  in  arrear.(4) 

(e)  Co.  Liu.  172,  a. 

(/)  Co.  Ent.  46,  b.  Rast.  Ent.  17. 

(g)  Metcalf's  case,  11  Rep.  38,  a. 

(h)  Bull.  N.  P.  128. 

(i)  Metcalf's  case,  supra. 


(1)  It  has  been  decided  in  Connecticut,  that  an  action  of  account 
will  not  lie  where  the  number  of  partners  exceeds  twOy  the  remedy  be- 
ing in  Equity.  Beach  wHotchkhs,  2  Conn.  Rep.  425,  and  Boardman 
V.  Seymour,  there  cited.  Russell  v.  Green,  10  Conn.  Rep.  270.  But 
the  law  in  Pennsylvania  is  different,  Griffith  v.  Tf'itling  et  al.  3  Binn. 
317,  where  there  were  more  than  two  defendants. 

(2)  Per  Gibson,  J.,  4  Serg.  <fe  Rawle,  78.  See  Neivbold  et  al.  v. 
Sims,  2  Serg.  &  Rawle,  317.     James  v.  Brown,  1  Dall.  339. 

(3)  If  matter  of  fact — if  matter  oi  law,  the  Court  will  decide  it. 
Crousillut  V  McCafl,  5  Binn.  433. 

(4)  Though  it  be  doubtful  whether,  if  auditors  report  a  balance  in 
favour  of  the  defendant,  judgment  may  be  lawfully  entered  for  such 


BETWEEN  PARTNERS.  70 

A  much  more  efficacious  remedy  for  partners  than 
the  action  of  account,  and  one  more  frequently  resorted 
to,  is  the  action  of  covenant.  If  the  articles  by  which 
the  partnership  is  constituted  are  under  seal,  damages 
commensurate  with  the  injuries  sustained  by  the  non- 
performance of  any  covenant  or  engagement  contained 
in  them  may  be  recovered  in  such  an  action.  For  in- 
stance, if,  in  the  deed  of  co-partnership,  the  partners 
covenant  each  to  advance  a  stipulated  sum  as 
capital,  for  the  purpose  of  launching  *the  part-  [  *71  ] 
nership,  an  action  to  enforce  payment,  according 
to  the  covenant,  will  lie  by  one  partner  against  the 
other,  who  fails  to  make  the  covenanted  advance,  and 
the  sum  agreed  upon  will  be  the  measure  of  dam- 
ages.(A:)(l)  So,  if  a  sole  trader  covenants,  in  con- 
sideration of  a  sum  agreed  to  be  paid  by  instalments,  to 
take  two  persons  into  partnership  with  him  for  a  period 
of  eighteen  years,  and  five  months  after  the  commence- 
ment of  the  partnership,  when  only  one  instalment  is 
due,  he  becomes  a  bankrupt,  still  the  admitted  partners 
must  pay  the  remaining  instalments,  and  the  assignees 
of  the  bankrupt  can  enforce  payment  of  them  at  the 
respective  periods  of  their  becoming  due.(/)  And  if  a 
trader  covenant  to  take  a  person  into  partnership,  and 
to  assign  to  him  a  moiety  of  the  interest  in  the  house,  "  to 
commence  from  and  after  a  certain  day  then  next,  on 
the  terms  and  conditions  following,  viz.  the  said  person 
to  pay  to  the  said  trader,  on  or  before  that  day,  a  stated 
sum  as  a  premium  or  fee  to  be  admitted  into  the  part- 

(k)  Venning  v.  Leckie,  13  East,  7. 

{I)  Akhurst  v.  Jackson,  1  Swanst.  85.     S.  C.  1  J.  Wilson,  47. 


balance,  yet  the  law  is  well  settled,  that  the  defendant  may  support  an 
action  of  debt  against  the  plaintiff  for  the  amount  of  the  sum  in  wliich 
he  was  found  in  surplusage.  McCall  v.  Crousillat,  3  Serg.  <fc  Rawle,  7. 
(1)  Terrill  v.  Richards,  1  Nott  &,  McCord's  Rep.  20.  Where  the 
partnership  consists  of  more  than  two  persons,  and  they  have  contri- 
buted severally,  and  in  different  proportions,  and  one  of  them  with- 
draws from  the  co-partnership,  in  violation  of  their  mutual  agreement, 
each  has  his  several  remedy  for  the  breach.  Bwihamv.  Gillis,  8  Mass. 
Rep.  462.     See  Thomas  v.  Pyke,  4  Bibb's  Rep.  418. 


71 


LEGAL  REMEDIES 


nership,  and  the  stock  to  be  valued,  and  such  person  to 
advance  a  sum  equal  to  the  value  of  the  stock,  and  proper 
articles  of  partnership,  as  soon  as  convenient,  to  be 
made  out;"  he  may  maintain  an  action  of  covenant 
upon  this  agreement  for  the  nonpayment  of  the  premium, 
before  the  articles  of  partnership  are  prepared,  or  the 
half  interest  in  the  premises  is  conveyed. (m)  So  if 
pa,rtners  covenant  to  account  annually,  or  to  adjust  and 
make  a  final  settlement  of  the  joint  concerns  at  the  ter- 
mination of  the  partnership,  a  refusal  by  one  partner  to 
perform  these  covenants  respectively  will  vest  in  the 
other  a  right  of  action  which,  when  enforced  at  law,  will 
entitle  him  to  a  satisfaction  co-extensive  with  the  re- 
sulting damage.(n)  (1)  And  where  a  penalty  is  reserved 
in  case  of  breach  of  a  partnership  agreement,  one  partner 
can  recover  on  the  covenant  against  his  co-partner;  and 
if  it  is  stipulated  in  the  articles  of  partnership  that  one  of 
several  partners  shall  sue  for  the  penalty  agreed  on,  and 
divide  the  amount  between  his  co-partners  who  have  not 
committed  a  breach  of  the  articles,  such  agreement  will 
be  binding,  although  the  party  appointed  to  sue,  if  he 
incurred  the  penalty,  could  not  sue  himself;  as  where 

several  persons  agreed  to  horse  the  several  stages 
[  *72  ]  of  a  coach,  and  that  in  case  of  default  one  of  *them 

specified  should  sue  the  defaulter  for  a  penalty  to 
be  divided  amongst  the  non-defaulters,  an  action  brought 
by  one  on  the  agreement  was  held  good.(o)  The  same 
rule  applies  to  every  other  species  of  lawful  covenant, 
by  which  partners  reciprocally  and  severally  bind  them- 
selves inter  se  to  the  performance  of  any  particular  act 
or  thing.  If  the  covenant  be  not  performed  by  the  co- 
venantor, although  its   fulfilment   cannot   be   enforced 


(m)  Walker  v.  Harris,  1  Anstr.  245, 

{n)  Moravia  v.  Levy,  2  T.  R.  483.  n.  Foster  v.  Alanson,  2  T.  R.  479. 

(o)  Radenhurst  v.  Bates,  3  Bingh.  463. 


(1)  Per  Kent,  Chanc.  Duncan  v.  Lyon,  3  Johns,  Cha.  Rep.  362. 
But  covenant  does  not  lie  on  an  agreement  of  partnership  to  compel  the 
payment  of  a  balance  due  to  the  partnership  from  one  of  the  partners, 
Niven  v.  Spickerman  et  al.  12  Johns.  Rep.  401. 


BETWEEN  PARTNERS.  72 

specifically  at  law,  yet  the  co-partners,  upon  showing 
that  they  have  performed  their  part  of  the  articles,  may 
recover  against  him  such  damages  as  have  been  occa- 
sioned by  his  want  of  faith.  It  seems,  however,  that  an 
action  at  law  is  not  maintainable  for  the  non-performance 
of  a  covenant  to  refer  disputes  to  arbitration;  such  a 
covenant  having  a  tendency  to  exclude  the  jurisdiction 
of  the  superior  courts.  And  independently  of  that  ob- 
jection, the  covenant  itself  has  been  considered  to  be 
nugatory  and  futile ;  for  as  it  could  not  appear  on  the 
trial,  that  the  plaintiff  would  have  succeeded  on  the  ar- 
bitration, the  court  itself  could  not  direct  the  jury  on 
what  rule  to  proceed  in  assessing  the  damages. (/?) 
Where  a  penalty  is  reserved  on  a  breach  of  the  partner- 
ship articles,  the  payment  of  it  may  be  enforced  either 
by  an  action  of  this  description,  or  the  same  object  may 
be  gained  by  an  action  of  debt. 

In  addition  to  the  legal  remedies  we  have  mentioned, 
the  action  of  assumpsit  is,  in  many  instances,  and  more 
generally,  adapted  to  the  assertion  of  the  rights  of  part- 
ners inter  se.  Thus,  this  action  may  be  supported  by 
one  person  against  another  for  the  breach  of  an  agree- 
ment to  become  a  partner ;  but  in  order  to  sustain  such 
an  action,  it  will  be  necessary  to  prove  the  specific  terms 
of  the  intended  partnership.(y)  And  where  the  contract 
of  partnership  is  verbal,  or,  being  reduced  into  writing, 
is  not  under  seal,  the  various  stipulations  it  embraces, 
the  conditions  and  engagements  it  contains,  and  the 
duties  it  imposes,  can  be  enforced  in  such  an  action  alone ; 
the  remedy  by  action  of  covenant  being  confined  ex- 
clusively to  those  cases  in  which  the  original  formation  of 
the  partnership  is  by  articles  under  seal.  It  may,  there- 
fore, be  advanced  as  an  indisputable  proposition, 
that,  *in  whatever  instances  an  action  of  covenant  [  *73  ] 
is  maintainable  for  the  breach  of  a  covenant  com- 
prised in  a  deed  of  co-partnership,  in  the  same  instances 
an  action  of  assumpsit  can  be  sustained,  if  the  partner- 

{p)  Tattersall  v.  Groote,  2  Bos.  &  Pul.  131. 

Ig)  Figes  v.  Cutler,  3  Stark.  N.  P.  C.  139.  And  see  Gale  v.  Leckie, 
2  Stark.  N.  P.  C.  107, 


73 


LEGAL  REMEDIES 


ship,  instead  of  being  constituted  by  deed,  were  con- 
tracted verbally  or  by  writing  only.  If  two  persons 
agree,  in  writing,  to  share  the  profit  or  loss  upon  goods 
bought  by  one  of  them  on  their  joint  account,  an  action 
of  assumpsit  may  be  maintained,  founded  on  the  agree- 
ment, by  the  one  against  the  other,  for  the  payment  of 
his  proportion  of  the  original  purchase,  because,  until 
that  is  paid,  there  cannot  be  any  account  of  profit  and 
loss  between  them.(r)  (1)  So,  where  A  agreed  to  sup- 
ply B  with  the  manuscript  of  a  work  to  be  printed  by 
the  latter,  the  profits  of  which  were  to  be  equally  divided 
between  them,  it  was  held  that  B  might  maintain  an 
action  against  A  for  refusing  to  supply  manuscript,  after 
part  of  the  work  had  been  printed ;  for  such  an  action 
has  not  for  its  object  the  division  of  partnership  profits, 
but  is  brought  against  the  defendant  for  not  contributing 
his  labour  towards  the  attainment  of  profits  to  be  subse- 
quently divided  between  the  parties,  and  is  therefore 
similar  in  principle  to  an  action  for  not  entering  into 
partnership  according  to  an  agreement.(s) 

It  is,  however,  a  well-established  rule,  that  between 
partners,  whether  they  are  so  in  general,  or  for  a  parti- 
cular transaction  only,  no  account  can  be  taken  at 
law.(/)  (2)  The  rule  is  founded  on  this  principle,  that 
before  a  right  of  action  in  respect  of  any  partnership 
item  can  be  conferred,  the  partnership  account  must  be 
taken  in  order  to  ascertain  whether  the  particular  item 
has  been  reduced  in  any  and  what  degree,  by  the  inter- 
mediate gains  or  losses  of  the  partnership  business ;  and 
as  it  would  be  utterly  impracticable  for  a  jury  to  take 
such  an  account,  a  court  of  law  has  not  the  means  in 
its   power   of  administering  substantial  justice. (w)  (3) 


l: 


ir)  Venning  v.  Leckie,  13  East,  7. 
(«)   Gale  V.  Leckie,  2  Stark.  N.  P.  C.  107. 
\t)  Per  Abbott  C.  J.,  Bovill  v.  Hammond,  6  B.  &  C.  151. 
(w)  Smith  V.  Barrow,  2  T.  R.  476.     Harvey  v.  Crickett,  2  Man.  & 
Selw.  340.     Where  A.  being  indebted  in  his  individual  capacity  to  a 


(1)  See  3  Johns.  Cha.  Rep.  362. 

(2)  Rogers  v.  Rogers,  1  Hall's  Rep.  391. 

(3)  Rogers  v.  Rogers. 


BETWEEN    PARTNERS.  74 

Therefore,  an  action  of  assumpsit  for  money  laid 
out  *in  the  partnership  business,  will  not  lie  by  [*74] 
one  partner  against  another,  before  an  account 
has  been  taken.(t))  So,  where  two  parties  agreed  to 
procure  a  cargo  for  a  ship  on  certain  commission  to  be 
divided  and  received  in  equal  moieties ;  it  was  held,  that, 
being  partners,  the  assignees  of  one,  who  had  become  a 
bankrupt,  could  not  maintain  an  action  against  the  other 
for  his  moiety,  the  balance  not  having  been  finally  set- 
tled, and  that  it  made  no  difference  that  all  the  receipts 
and  disbursements  had  been  made  by  the  defendant,  who 
had  stated  an  account  to  the  ow^ners.(i^j)  But  the  rule 
applies  only  to  an  unadjusted  partnership  account,  and 
does  not  deprive  a  partner  of  his  legal  remedy  where  an 
account  has  been  taken,  and  the  balance  ascertained,(l) 

house  in  trade,  of  which  he  was  a  partner,  in  a  sum  of  money,  the 
amount  of  which  could  not  be  ascertained,  covenanted  to  pay  the  firm 
all  his  then  debts,  and  such  other  debts  as  should  subsequently  accrue, 
and  died  without  having  satisfied  the  original  debt,  and  having  con- 
tracted further  debts  subsequent  to  the  execution  of  the  deed  ;  it  was 
held,  in  an  action  against  his  executors,  two  of  whom  were  partners 
in  the  house  of  trade,  that,  inasmuch  as  there  was  no  adjusted  balance, 
the  defendants  could  not  plead  either  of  these  debts,  either  by  way  of 
retainer,  or  as  an  outstanding  specialty  debt.  De  Tastet  v.  Shaw,  1 
B.  &  A.  664. 

{v)  Holmes  v.  Higgins,  1  B.  &  C  74. 

{w)  Bovill  V.  Hammond,  6  B.  &  C.  149.     Bayky,  J.  diss. 


(1)  Ozeas  v.  Johnson,  adm.  1  Binn.  191.  S.  C.  4  Dall.  434.  Walker  v. 
Long,  2  P.  A.  Browne's  Rep.  125.  Miirrayv.Bogert  et  al.  14  Johns. 
Rep.  318.  Beach  v.  Hotchkiss,  2  Conn.  Rep.  425.  Young  et  al.  v. 
Brick  et  al.  2  Penn.  Rep.  663.  Course  v.  Prince  1  Rep.  Const.  Ct. 
413.  Lamalere  v.  Caze,  1  Wash.  C.  C.  Rep.  435;  Kennedy  v. 
McFadon,  et  al.  3  Harr.  &  Johns.  194.  The  law  is  settled  dif- 
ferently in  Massachusetts.  Brigham  v.  Eveleth,  Jones  v.  Har- 
raden,  9  Mass.  Rep.  538,  540.  Bond  v.  Hays,  12  Mass.  Rep. 
34.  Wilbey  v.  Phinney,  adm.  15  Mass.  Rep.  112;  Fanning  v. 
Chadivick,  3  Pick.  Rep.  420;  Brinley  v.  Kupfer,  6  Pick.  Rep. 
179.  JVilliams  v.  Henshaiv,  11  Pick.  Rep.  79.  Haskell  \.  Mams, 
7  Pick.  Rep.  59,  will  be  found  in  conformity  with  the  other  decisions 
if  attentively  considered.  And  after  a  trial  and  verdict  for  the  de- 
fendant, it  is  too  late  to  object,  that  the  subject  matter  of  the  suit  was 
a  co-partnership  contract  between  him  and  the  plaintifT — the  objection 
should  be  made  at  the  trial.  Smith  v.  Mien,  18  Johns.  Rep.  245.  It 
has  also  been  held   in   Massachusetts,  that  whenever  a  partnership 

14 


74  LEGAL    REMEDIES 

and  an  express  promise  to  pay  it  has  been  made;  in 
such  a  case  there  arises  a  moral  consideration,  which 
will  clearly  support  an  action  of  assumpsit. (^x)  (1)  So, 
on  the  same  principle,  where  the  balance  of  a  partner- 
ship account  has  been  ascertained  by  a  colonial  court  of 
equity,  and  a  decree  made  for  payment,  a  promise  to 
pay  the  debt  ascertained  by  that  decree  will  be  pre- 
sumed, and  an  action  at  law  lie  for  the  recovery  of  it.(y) 
But  in  the  case  of  an  adjustment  between  the  partners 
themselves,  the  balance  stated  must  be  a  final  balance 
of  all  the  partnership  accounts;  for  balances  struck 
during  the  continuance  of  the  partnership,  and  which 
are  preparatory  only  to  a  final  account,  are  not  suffi- 
ciently conclusive  to  be  made  the  foundation  of  an 
action.  Therefore,  where  it  appeared  that  two  persons 
had  been  engaged  in  running  a  coach,  the  one  finding 
horses  for  one  part  of  the  road  and  the  other  for 
another,  and  that  the  profits  of  each  party  were  calcu- 
lated according  to  the  number  of  miles  covered  by 
his  own  horses,  and  that  one  of  them  received  the  fares, 
and  rendered  an  account  thereof  to  the  other  every 
week,  in  an  action  by  the  former  against  the  latter  upon 

(x)  Foster  v.  Allanson,  2  T.  R.  479. 

(y)  Henley  v.  Soper,  2  Mann.  &  Ryl.  153.     S.  C.  8  B.  &  C.  16. 


adopts  a  project  within  the  principles  of  their  agreement,  for  the  pur- 
poses of  profit,  it  must  be  for  the  benefit  of  all  the  partners  in  propor- 
tion to  their  respective  interests  in  the  concern;  and  if  a  majority  of 
the  partnership  should  withhold  from  one  of  its  members  a  share  of 
such  profit,  or  any  partnership  privileges,  he  may  maintain  an  action 
on  the  case  against  the  partnership  for  the  injury.  Gray  v.  The  Fort- 
land  Bank,  3  Mass.  Rep.  364. 

(1)  In  New  York  and  South  Carolina  it  has  been  decided,  that  an 
express  promise  is  essential.  Casey  et  al.  v.  Brush,  2  Caines'  Rep. 
293.  Halstead  et  al.  v.  Schenelzell,  17  Johns.  Rep.  80.  Westerlo  v. 
Evertson,  1  Wend.  Rep.  532.  Atxvater  v.  Foider,  1  Hall's  Rep.  180. 
Course  v.  Prince,  1  Rep.  Const.  Ct.  416.  But  in  Pennsylvania,  where 
accounts  have  been  settled,  and  a  balance  struck,  ( — which  must  be 
the  act  of  both  parties.  Gill  v,  Kuhn,  7  Serg.  &  Rawle,  333,  the  close 
of  Judge  Gibson's  opinion.  Course  v.  Prince,  1  Rep.  Const.  Ct.  413 ; 
Lamalere  v.  Caze,  1  Wash.  C.  C.  Rep.  435 — )  the  action  may  be 
maintained.  Ozeas  v.  Johnson,  1  Binn.  191.  S.  C.'4  Dall.  434.  See 
Jessup  v.  Cook,  1  Halst.  Rep.  434.  Fannins^  v.  Chadivick,  3  Pick. 
Rep.  420. 


BETWEEN    PARTNERS.  74 

a  separate  transaction,  it  was  held  that  a  balance, 
which  had  been  declared  in  favour  of  the  latter  upon 
these  weekly  accounts,  could  not  be  set  off.(z) 
*Where  a  final  balance  is  ascertained,  it  seems  [  *75  ] 
to  have  been  considered  that  an  express  promise 
is  not  essential  to  the  support  of  the  action,  because  the 
law  itself  will  raise  a  promise  to  pay  ;(a)  but  the  deci- 
sion in  which  that  principle  was  laid  down  has  been  im- 
pugned ;  and,  in  conformity  with  the  prior  authorities, 
it  has  been  said  that  the  promise  must  be  express.(6) 
And  it  does  not,  in  the  case  of  a  dissolution  and  an 
express  promise,  affect  the  form  of  the  action,  that  the 
parties  have  covenanted  under  seal  to  settle  accounts 
at  the  expiration  of  the  partnership,  and  therefore  that 
the  plaintiff  has  a  remedy  of  a  higher  nature,  by  an  ac- 
tion upon  the  covenant;  for  the  dissolution  and  the 
consequent  settlement  of  accounts  is  of  itself  a  sufficient 
consideration  for  a  promise  to  pay  what  may  be  ascer- 
tained to  be  due.(c)  And  if  the  stated  account  is  not 
confined  to  matters  affecting  the  partnership,  but  in- 
cludes other  articles  for  which  covenant  w  ill  not  lie,  it  is 
settled  the  action  of  assumpsit  can  be  maintained ;  .be- 
cause by  stating  the  account,  and  introducing  other 
items  not  relating  to  the  partnership,  the  nature  of  the 
demand  is  changed,  and  a  new  cause  of  action  accrues, 
independant  of  the  covenant. (c?)  So  where,  by  agree- 
ment between  partners,  part  of  the  partnership  funds 
are  expressly  appropriated  to  the  use  of  one  of  them  as 
a  security  against  liabilities,  which  he  is  thereby  induced 
separately  to  undertake ;  on  the  fulfilment  of  such  lia- 
bihties,  he  may,  in  an  action  for  money  had  and  re- 
ceived, recover  the  amount  so  appropriated.     Thus,  A, 

(z)  Fromont  v.  Coupland,  2  Bingh.  170.  It  has  been  said,  that,  if 
there  are  partnership  dealings,  and  one  item  only  remains  unadjusted, 
the  difficulty  as  to  one  partner  maintaining  assumpsit  disappears.  Rob- 
son  V.  Curtis,  1  Stark.  N.  P.  C.  78.  [Musner  v.  Trompfwitr,  5 
Wend.  Rep.  274.] 

(a)  Rackstraw  v.  Imber,  Holt's  N.  P.  C.  368. 

lb)  Fromont  v.  Coupland,  ayite. 

(c)  Per  Buller,  J.,  Foster  v.  Allanson,  ante.  See  also  Moravia  v. 
Levy,  there  cited.     But  see  Schack  t".  Anthony,  1  Mau.  &  Selw.  573. 

(dy  Foster  v.  Allanson,  ante. 


75 


LEGAL  REMEDIES 


B,  and  C,  were  jointly  concerned  in  the  sale  of  butters, 
which  A  consigned  to  C,  who  sold  them  on  the  joint 
account.  B,  being  requested  to  accept  bills  in  his  own 
name  for  the  firm,  refused  to  do  so  without .  some 
security,  when  C  engaged,  if  B  paid  the  bills,  to  repay 
him  out  of  the  proceeds  received  for  butters  already 
sold.     B  having  accepted  and  paid  the  bills,  it  was  held 

that  he  might  sue  C  for  money  had  and  received 
[  *76  ]  to  his  use.(c)    When  one  partner  retains  a  sum* 

of  money  belonging  to  another,  and  not  received 
on  account  of  the  partnership  subsisting  between  them, 
quoad  this  sum,  they  are  like  any  other  two  indifferent 
persons,  and  an  action  of  assumpsit  may  be  maintained 
to  recovei-  it.  Thus,  where  a  member  of  a  firm  had  a 
separate  demand  upon  a  debtor  to  the  firm,  and  the 
debtor  compounded  with  his  creditors,  and  the  trustees, 
under  the  deed  of  composition,  remitted  to  the  partners, 
in  their  joint  names,  a  bill  of  exchange,  which  was  paid 
to  the  partner,  who  was  not  a  separate  creditor,  it  was 
determined  that  the  other  partner  might  maintain  inde- 
hitatus  assumpsit  for  his  share  of  the  proceeds  due  on 
account  of  the  separate  debt,  because,  as  to  that  por- 
tion, it  was  money  specifically  received  by  the  one  to 
the  use  of  the  other  partner.(/)  So,  each  subscriber 
to  a  scheme,  who  pays  his  subscription  on  a  prospect 
that  the  scheme  will  continue,  and  does  no  act  rendering 
himself  liable  to  the  expenses  of  attempting  to  bring  it 
into  operation,  may,  if  it  afterwards  proves  abortive,  or 
is  abandoned  without  any  steps  being  taken  towards 
carrying  it  into  effect,  recover  back  the  whole  of  the 
money  advanced  by  him,  without  the  deduction  of  any 

{e)  Coffee  v.  Brian,  3  Bingh.  54.  The  declaration  in  this  action 
contained  special  counts  on  the  bills,  which  alleged  them  to  have  been 
drawn  on  account  of  A  and  C,  whereas,  in  fact,  they  Avere  drawn  on 
the  account  of  A,  B,  and  C.  It  was  objected  at  the  trial,  and  afterwards 
insisted  upon,  on  a  motion  to  set  aside  the  verdict,  that  this  was  a  fatal 
variance.  The  court,  with  the  exception  of  Mr.  Justice  Burroiigh, 
abstained  from  giving  any  opinion  on  the  question,  conceiving  that,  as 
the  contract  was  executed,  the  plaintiff  might  resort  to  the  common 
counts;  but  that  learned  judge  thought  the  plaintiff  could  not  have  re- 
covered on  the  special  counts. 

(/}  Smith  V.  Barrow,  3  T.  R.  476. 


BETWEEN  PARTNERS.  76 

part  towards  payment  of  the  expenses  incurred ;  and, 
under  such  circumstances,  it  seems,  that  the  action  may 
be  maintained,  although  the  scheme  would  have  been 
open  to  the  objection  of  illegahty,  had  it  been  effectuated. 
Therefore,  where  a  prospectus  for  establishing  a  scheme, 
called  the  British  Metropolitan  Tontine,  w^as  circulated, 
stating  that  the  money  subscribed  was  to  be  laid  out  at 
interest,  and  that  at  the  expiration  of  a  year,  every  sub- 
scriber should  receive  a  shareholder's  ticket,  which 
would  be  saleable  or  transferable ;  and  after  some  sub- 
scriptions had  been  paid  to  the  directors,  in  whom  the 
management  of  the  concern  was  vested,  but  before  any 
part  of  the  money  was  laid  out  at  interest,  and  before 
any  shareholders'  tickets  had  been  delivered,  the  direc- 
tors resolved  to  abandon  the  project ;  it  was  determined 
that  each  subscriber,  in  an  action  for  money  had  and 
received,  might  recover  the  full  amount  of  his  subscrip- 
tion from  the  directors,  because,  until  the  money  had 
been  laid  out  in  execution  of  the  proposed  scheme,  the 
shareholders  did  not  become  jointly  interested  in  the 
funds  of  the  concern,  and  consequently  were  not 
partners ;  and  that  the  respective  ^subscriptions  [  *77  ] 
were  not  subject  to  any  deduction  on  account  of 
expenses ;  for  all  expenses  incurred  for  endeavouring  to 
bring  an  abortive  scheme  into  actual  operation  must  be 
borne  by  the  original  projectors,  and  not  by  those  who 
advance  their  money  on  the  faith  of  its  going  on.(^) 
And  the  steward  of  a  benefit  club  has  been  allowed  to 
maintain  assumpsit  against  a  person  who  had  been  a 
member  of  the  club,  and  w^ho,  having  possession  of  the 
funds  of  the  society,  ran  away  with  them,  and  converted 
them  to  his  own  use.     Nor  was  it  considered  any  ob- 

{g)  Nockels  V.  Crosby,  3  B.  &  C.  814.  In  this  case  it  was  laid 
down  as  a  general  principle,  that  where  persons  set  a  scheme  afoot, 
and  assume  to  be  the  directors  or  managers,  all  the  expenses  incurred 
before  the  scheme  is  in  actual  operation  must,  in  the  first  instance,  be 
borne  by  them.  When  it  is  in  operation,  the  expenses  and  charge  of 
management  should  be  borne  by  the  concern,  and  then  it  may  be  fair 
and  equitable  that  the  preliminary  expenses  shoidd  be  paid  in  tlie  same 
way,  inasmuch  as  the  subscribers  reap  the  full  benefit  of  them.  But 
even  then  the  previous  expenses  are  not  to  be  paid  out  of  the  concern, 
unless  they  are  adopted  when  it  is  in  operation. 


77 


LEGAL  REMEDIES 


jection  to  such  an  action,  that  the  defendant,  having 
been  a  member  at  the  time  when  the  promise  was  laid 
to  have  been  made  in  the  declaration,  was  a  partner  or 
tenant  in  common ;  for,  in  consideration  of  his  imphed 
promise  to  pay  the  money  whenever  it  should  be  de- 
manded, and  his  having  left  the  society,  he  was  held  to 
have  treated  himself  as  if  he  were  no  longer  member, 
and  therefore  liable  in  such  an  action.(A)(l)  But  w^here 
one  partner  receives  a  bill  of  exchange  in  respect  of  a 
particular  partnership  transaction,  and  indorses  it  to  his 
co-partner,  and  on  its  being  dishonoured,  promises  the 
indorsee,  that  if  he  will  take  it  up,  he  will  pay  him  one 
half  of  the  amount,  it  seems  that,  in  respect  of  such 
an  insulated  transaction,  assumpsit  cannot  be  main- 
tained by  the  indorsee  to  recover  the  moiety.(2)  (2) 
Neither  can  one  partner  maintain  an  action  against  his 
co-partners  for  work  and  labour  performed  on  account 
of  the  partnership,  for  the  consequence  of  allowing  it 
would  be  a  recovery  by  one  joint  contractor  against 
another,  in  which  case  the  defendant  w ould  have  a  right 
to  call  upon  the  plaintiff  for  contribution.     Therefore, 

(A)  Sharp  v.  Warren,  6  Price,  131. 

(z)  Robson  V.  Curtis,  1  Stark.  N.  P.  C.  78. 


(1)  The  decision  in  Sharpe  v.  Warren  may  be  sustained,  on  the 
ground,  that  the  Act  of  Parharaent  vested  the  right  to  sue  in  the  officers 
of  the  Society,  the  11th  sect,  providing  "  that  the  moneys,  &;c.  of  the 
Society  shall  be  vested  in  the  treasurer  or  treasurers  (or  other  officers) 
for  all  purposes  of  action  and  suit,  and  that  it  shall  for  those  purposes 
be  taken  to  be  the  property  of  such  officers,  who  are  authorised  to  bring 
actions  in  their  own  names.",  The  plaintiff's  had  been  appointed 
treasurers  to  the  society  previous  to  the  commencement  of  the  action, 
to  enable  them  to  sue  under  the  act  of  the  33  Geo.  3,  c.  54,  sec.  4.  It 
was  the  case  of  a  most  gross  breach  of  trust ;  and  it  is  easy  to  collect, 
from  the  report,  how  hard  the  Judges  struggled  to  support  the  verdict ; 
but  it  was  a  decision  upon  the  pecuUar  circumstances  of  the  case,  and 
no  general  principle  can  be  deduced  from  it  independent  of  those  cir- 
cumstances. 

(2)  See  Coffin  v.  Bain,  10  Moore's  Rep.  341.  A  promissory  note 
given  by  one  member  of  a  commercial  Company  to  another  member, 
for  the  use  of  the  Company,  will  maintain  an  action  at  law  by  the 
promisee  in  his  own  name,  against  the  maker,  notwithstanding  both 
parties  were  partners  in  that  Company,  and  the  money  when  recovered 
would  belong  to  the  Company.      Van  Ness  v.  Forrest,  8  Cranch,  30. 


BETWEEN  PARTNERS.  77 

where  a  subscriber  to  a  joint  undertaking  acted  as  sur- 
veyor to  the  whole  body  of  subscribers,  it  was  held,  that 
he  could  not  maintain  an  action  for  work  done  by  him, 
in  that  character,  against  all  or  any  one  of  the  other 
subscribers.(^-)  (3)  So  where,  upon  the  dissolution 
of  a  joint  stock  company,  two  of  *the  members  [  *78  ] 
were  sued  by  a  creditor  of  the  concern,  and  they 
employed  the  plaintiff,  an  attorney,  and  also  a  member 
of  the  company,  to  defend  the  suit ;  it  was  held  that  as 
he  himself  derived  a  benefit  from  the  defence,  he  could 
not  sue  his  late  co-partners  for  the  costs.(/)    And  where 
bills  were  drawn  on  the  defendants,  not  by  name,  but  as 
the  directors  of  a  company,  and  accepted  by  their  se- 
cretary "  for  the  directors,"  it  was  determined  that  the 
plaintiff,  being  a  member  of  the  company,  could  not  re- 
cover, because  one  partner  could  not  draw  on  the  whole 
firm   including  himself.(m)     In  like   manner,  where  a 
member  of  a  joint  stock  company  was  employed  by  the 
company  as  their  agent  to  sell  goods  for  them,  and  re- 
ceived a  commission  of  two  per  cent,  for  his  trouble, 
and  one  per  cent,  del  credere  for  guaranteeing  the  pur- 
chaser :  having  sold  goods  on  account  of  the  company, 
he  drew  on  the  purchaser  a  bill  of  exchange,  payable  to 
his,  the  drawer's  own  order ;  and,  after  it  had  been  ac- 
cepted, he  indorsed  it  to  the  actuary  of  the  company, 
and  the  latter  indorsed  it  to  another  member,  who  was 
the  managing  director,  and  who  purchased  goods  for  the 
company,  the  company  being  then  indebted  to  him  in  a 

ik)  Holmes  v.  Hig^ins,  1  B.  &;  C.  74. 

(I)  Millburn  v.  Codd,  6  B.  &  C.  419.  S.  C.  1  Man.  &  Ryl.  238. 
In  Parkin  v.  Fry,  2  C.  &  P.  N.  P.  C.  311,  it  was  ruled,  that  a  party, 
who  originally  invited  the  defendant  and  others  to  form  a  joint  stock 
company,  and  acted  himself  as  secretary  to  the  committee,  could  not, 
the  scheme  never  taking  effect,  maintain  an  action  for  compensation  for 
services ;  but,  it  might  have  been  otherwise,  if  they  had  sent  for  and 
employed  him  to  assist  them. 

(in)  Neale  v.  Turton,  4  Bingh.  149.  In  this  case  it  was  also  said  to 
be  necessary  that  the  plaintiff  should  show  that  the  secretary  had  an 
express  authority  to  accept  the  bills,  as  in  general  a  secretary  has  not 
such  power. 


(3)  Causten  v.  Burke,  2  Har.  &  Gill.  295. 


78 


LEGAL  REMEDIES 


larger  sum  than  the  amount  of  the  bill.  The  acceptor 
having  become  insolvent  before  the  bill  became  due,  the 
drawer  received  from  him  ten  shillings  in  the  pound  upon 
the  amount  of  the  bill  by  way  of  composition  ;  and  it 
was  held,  that  the  indorsee,  being  a  member  of  the  com- 
pany, could  not  sue  the  drawer  upon  the  bill,  inasmuch 
as  it  was  drawn  by  the  latter  on  account  of  the  com- 
pany ;  and  that  he  could  not  recover  the  sum  received 
by  the  drawer  on  the  bill,  because  that  money  must  be 
taken  to  have  been  received  by  him  in  his  character  of 
a  member  of  the  company,  and  not  on  his  own  account.(7i) 
But  where  the  directors  of  a  projected  joint  stock  com- 
pany contracted,  in  their  ow  n  names,  with  a  shareholder 
for  the  purchase  of  a  mine ;  and  after  the  formation  of 

the  company,  entered  into  further  agreements 
[  *79  ]  with  him  respecting  the  *purchase,  with  a  clause 

exempting  them  from  personal  liability  upon  cer- 
tain parts  of  the  contract,  it  was  held  that  the  directors 
might  be  sued  by  the  shareholder  upon  those  parts  of 
the  contract  to  wiiich  the  exemption  did  not  apply.(o) 

The  remedy  by  an  action  for  contribution  catinot  be 
extended  to  general  partners  without  infringing  on  the 
principle,  which  denies  to  a  partner  legal  redress  against 
his  co-partners  in  the  case  of  an  unsettled  account.  If, 
therefore,  one  partner  in  a  general  partnership  has  any 
claim  for  contribution  against  his  co-partners,  it  seems 
to  be  the  proper  subject  of  a  bill  in  equity  only.(  jo)  But 
where  persons  are  partners  in  a  single  transaction,  one 
of  them  may,  in  an  action  of  assumpsit,  for  money  paid 
to  his  use,  enforce  from  the  other  contribution  towards 
a  debt,  which  he  may  have  discharged,  but  to  which  they 
were  jointly  liable.(</)  It  was  formerly  doubted  whether 
one  of  two  joint  contractors. who  had  paid  the  whole  of 
a  joint  debt  could  maintain  an  action  against  the  other, 
as  for  money  paid  to  his  use ;  but  the  right  of  such  an 
action  is  now  perfectly  settled,  and  it  has  become  fami- 


(n)  Teague  v.  Hubbard,  8  B.  &  C.  345.  S.  C.  2  Man.  &  Ryl.  369. 
(o)  Atlwood  V.  Small,  1  Mann.  &  Ryl.  246. 
Ip)  Per  Buhy,  J.,  Millburn  v.  Codd,  6  B.  &  C.  422. 
((/)  Abbott  V.  Smith,  2  Blackst.  917.     Per  Lord  Kenyan,  Merry- 
weather  V.  Nixon,  8  T.  R.  186.     Evans  v.  Yeatherd,  2  Bingh.  133. 


BETWEEN  PARTNERS.  79 

liar  in  practice.(r)  This  action  is  not,  perhaps,  to  be 
considered  as  founded  upon  contract,  so  much  as  on  a 
fixed  principle  of  justice,  and  a  settled  rule  of  law,  -which 
requires  equality,  according  to  the  maxim,  qui  sentit  com- 
modum  seniire  debet  et  onus.{s)  (1)  Therefore,  if  one  of 
two  partners  discharge  a  joint  demand,  or  if  the  debt 
and  damages  due  on  a  joint  judgment,  founded  on  con- 
tract, be  levied  against  him  separately,  he  may,  in  an 
action  for  money  paid  to  the  use  of  his  co-partner,  re- 
cover from  him  his  proportion,  because,  both  being  in 
quali  jure,  each  ought  equally  to  bear  the  burden.(/) 
So,  where  the  manager  or  agent  of  a  company  has 
paid  a  debt  due  from  the  company,  he  may  compel 
all  and  each  of  the  members  to  contribute  their  re- 
spective proportions.(z^)  And  if  two  persons  enter 
into  a  joint  contract  with  the  owner  of  a  vessel 
to  supply  *her  with  colonial  produce  by  a  given  [  *80  ] 
time ;  and  the  contract  not  being  complied  with, 
the  owner  makes  a  demand  on  one  of  them  for  compen- 
sation, who,  without  the  knowledge  or  consent  of  the 
other  agrees  to  refer  the  amount  of  the  damage  sustained 
to  an  arbitrator,  and  pays  to  the  owner  the  whole  sum 
awarded  to  be  due ;  in  an  action  for  money  paid  he  may 
recover  from  his  co-contractor  a  moiety  of  his  disburse- 
ment.(u)  (2)  But  to  enable  one  partner,  who  has  paid  a 
joint  debt,  to  recover  contribution  from  his  co-partner, 
it  is  essential  that  the  relation  of  partners,  and  the  con- 
sequent obligations,  should  exist  inter  se;  for  though 
persons  may  make  themselves  partners  by  means  of 
their  transactions  with  the  world,  and  therefore  be  liable 
upon  any  engagement  that  may  arise  out  of  that  rela- 

(r\  Wright  v.  Hunter,  5  Ves.  792.     And  see  1  East,  20. 

m  Deering  v.  Lord  Winchelsea,  2  Bos.  &  Pul.  270. 

(/)  Per  Lord  Kenyan,  Herries  v.  Jamieson,  5  T.  R.  556.  Bayley, 
J.,  Ansell  V.  Waterhouse,  6  Mau.  &  Selw.  390. 

(m)  Carlen  v.  Drury,  1  Ves.  &l  Bea.  157.  See  Holmes  v.  William- 
son, 6  Mau.  &  Selw.  158. 

(v)  Burnell  v.  Minot,  4  B.  Moore,  340. 


n)  Campbell  v.  Mesier  et  al.  4  Johns.  Cha.  Rep.  33  i. 
(2)  See  Noel  v.  Bowman,  2  Littel's  Rep.  46. 
15 


80 


LEGAL  REMEDIES 


tion,  yet  it  does  not  follow  that,  with  respect  to  each 
other,  they  are  to  be  considered  as  partners,  or  that 
where  one  has  paid  the  whole  of  a  debt  for  which  both 
were  liable,  any  obligation  attaches  to  the  other  to  con- 
tribute to  it.  Thus,  the  manager  or  servant  of  a  part- 
nership, who  acts  as  one  of  the  partners  in  the  part- 
nership, is  responsible  to  third  persons  in  the  character 
of  partner,  and,  if  sued  to  judgment  by  a  joint  credi- 
tor, may  be  compelled  to  pay  not  his  proportion  alone, 
but  the  whole  of  the  joint  debt;  but,  if  he  were  so  com- 
pelled, he  would  have  an  indisputable  right  to  be  repaid 
by  the  partnership  whatever  sum  he  may  hate  disbursed, 
because,  as  between  himself  and  the  firm,  he  could  not 
be  subject  to  the  payment  of  any  part  of  the  joint  debts; 
and  that  being  so,  it  is  clear  that  if  the  payment  were 
made  in  the  first  instance  by  either  of  the  actual  mem- 
bers of  the  firm,  that  member  could  not  call  upon  the 
manager  to  contribute  to  it.(z/;)  So,  two  persons,  en- 
tering into  a  trading  concern,  may  agree  between  them- 
selves that  neither  shall  be  answerable  for  the  acts  or 
losses  of  the  other,  but  each  for  his  own  ;  and,  in  such 
a  case,  the  one  cannot  be  compelled  to  contribute  any 
proportion  of  a  loss  sustained  by  the  other.(^)  And 
where  a  Fire  Assurance  Company  was  established  on 
the  principle  of  mutual  guarantee,  and,  by  the  articles 
and  policies  granted,  it  was  stipulated  and  declared  that 
the  directors,  who  might  execute  the  policies,  should  not 
be  personally  responsible  for  loss,  but  that  the  company 
should  be  liable  for  it  to  the  extent  of  their  funds ;  it 

was  held,  in  an  action  on  a  policy  against  three 
[  *81  ]  directors  who  had  subscribed  it,  to  *which  the 

defendants  pleaded  several  pleas  imputing  fraud 
to  the  plaintiflf,  which  the  jury  negatived  by  finding  a 
verdict  for  him,  that  although  no  personal  or  individual 
responsibility  attached  to  them,  yet  as  the  plaintiff  was 
clearly  entitled  to  recover  from  the  funds  of  the  society, 
if  they  were  sufficient  to  defray  the  amount  of  his  loss, 
and  as  the  plaintiff  averred  that  those  funds  were  suf- 

{w)  Geddes  v.  Wallace,  2  Bligh.  270. 
{x)  Waugh  V.  Carver,  2  H.  Bl.  235. 


BETWEEN  PARTNERS.  81 

ficient,  which  the  defendants  had  not  denied,  there  was 
not  any  ground  for  arresting  the  judgment.(y)  Besides 
a  joint  obligation  inter  se,  it  is  also  requisite  that  a  joint 
legal  liability  should  originally  have  existed,  or  at  least 
that  the  creditor  should  have  had  an  equitable  claim,  in 
respect  of  a  joint  debt,  upon  the  party  paying  ;(z)  a  mere 
voluntary  pa3^ment  by  one  partner,  unconnected  with 
legal  or  equitable  responsibility,  being  insufficient  to 
confer  upon  him  any  right,  as  against  the  other  mem- 
bers of  the  firm.(l)  Therefore,  where  four  persons, 
being  in  partnership  as  carriers,  entered  into  an  agree- 
ment, with  a  third  person,  to  carry  goods  for  him  from 
London  to  Frome^  where  they  were  to  be  deposited  in 
the  warehouse  of  the  resident  partner  until  the  owner 
should  be  ready  to  receive  them  into  his  own ;  and  cer- 
tain goods,  having  been  forwarded,  were,  after  they  had 
been  deposited  in  the  partner's  warehouse,  destroyed 
there  by  fire,  it  was  determined,  that,  as  the  liability  of 
the  partners,  in  their  capacity  of  carriers,  ceased  on  the 
arrival  of  the  goods  at  Frome,  the  resident  party,  who 
had  paid  over  the  amount  of  the  loss  to  the  owner  of 
the  goods,  could  not  recover  from  his  co-partners  any 
proportion  of  the  sum  he  had  paid. (a)  But  where  two 
partners  executed  a  deed  of  dissolution  of  the  partner- 
ship, whereby  it  was  stipulated  that  neither  of  them 
should  afterwards  make  any  purchase  to  bind  the  other, 
but  that  every  subsequent  purchase  should  be  on  the 
private  account  of  the  purchaser,  it  was  held,  that  if  one 
afterwards  made  purchases  in  the  name  of  the  firm,  and 
the  other  paid  for  them,  he  might  maintain  an  action 
against  the  former  for  money  paid  to  his  use,  notwith- 
standing the  defendant  had,  by  deed,  assigned  his  pro- 
perty to  his  creditors,  who  covenanted  not  to  sue 
him,  and  which  latter  deed  the  plaintiff  himself  sign- 

(y)  Andrewes  v.  Ellison,  6  B.  Moore,  199  ;  and  see  Ellison  v.  Big- 
nold,  2  Jac.  &  Walk.  503. 

(z)  Hutton  V.  Eyre,  1  Marsh,  698. 
(a)  In  re  Webb,  2  B.  Moore,  500. 


(1)  Murray  v.  Bogert  et  al.  14  Johns.  Rep.  318. 


82 


LEGAL  REMEDIES 


[  *82  ]  ed.(6)  And  it  is  essential  that  the  *debt  itself 
should  be  discharged  by  an  actual  payment,  since 
a  mere  extinguishment  of  it,  by  one  joint-contractor 
giving  a  higher  security,  will  not  entitle  him  to  maintain 
an  action  for  money  paid  against  his  co-contractor.  Thus 
where  one  of  the  makers  of  a  joint  and  several  promissory 
note,  after  the  same  had  become  due,  gave  his  bond  to  the 
holder  for  the  amount,  but,  before  the  commencement  of 
the  action,  no  money  was  actually  paid  on  the  bond,  it 
was  held,  that  until  he  had  paid  the  money,  he  could 
not  maintain  an  action  to  recover  contribution  against 
any  of  the  other  makers  of  the  original  note.(c) 

Where  a  joint  liability  existed,  and  the  debt  or  de- 
mand, in  respect  of  which  that  liability  was  created,  has 
actually  been  discharged  by  one  partner  out  of  his  sepa- 
rate funds,  he  may  nevertheless  be  precluded  from  call- 
ing upon  his  co-partner  to  contribute  his  proportion  of 
the  debt  by  the  illegality  of  the  original  contract ;  for, 
if  the  agreement,  out  of  which  the  debt  or  demand 
originated,  were  contaminated  with,  or  arose  out  of  an 
illegal  transaction,  the  action  for  a  contribution  cannot 
be  sustained.  Therefore,  if  partners  are  engaged  in  any 
thing  malum  in  se,  one  of  them  cannot  acquire  a  right  of 
action  by  paying  a  sum  of  money  which  they  may 
jointly  have  promised  to  a  third  person  in  the  course  of 
their  immoral  transactions. (rf  )  So,  w  here  the  transac- 
tion in  respect  of  which  the  payment  is  made  is  not 
malum  in  se,  but  only  malum  prohibitum,  yet  if  the  money 
were  advanced  in  the  course  of,  and  with  the  view  of 
furthering,  the  illegal  contract,  a  claim  of  contribution 
cannot  be  supported.  For  it  is  a  maxim  in  law,  that  a 
party  must  show  that  he  stands  on  fair  ground  when  he 
calls  on  a  court  of  justice  to  administer  relief  to  him; 
and  as  that  is  far  from  being  the  case  with  a  suitor  who, 
as  the  foundation  of  his  claim,  discloses  a  transaction 
which  originated  out  of  a  matter  prohibited  by  the  mu- 

(b)  Hutton  V.  Eyre,  1  Marsh,  603.     S.  C.  6  Taunt.  289. 

(c)  Maxwell  v.  Jameson,  2  B.  <fc  A.  51 .  Taylor  v.  Higgins,  3  East, 
169.  ace.  Barclay  v.  Gooch,  2  Esp.  N.  P.  C.  571.  cont.  See  Ex  parte 
Sergeant,   1  Glyn  &l  James.  183. 

{d)  Per  Heath,  J.,  Aubert  v.  Maze,  2  Bos.  &  Pul.  371. 


BETWEEN   PARTNERS.  82 

nicipal  regulations  of  the  state,  the  rule  of  ex  turpi  causa 
non  oritur  actio  applies.  Thus,  if  one  of  two  partners 
advance  money  in  a  smuggling  transaction,  he  cannot 
recover  his  proportion  of  it  against  his  partner,  because 
the  transaction  is  prohibited,(e)  Although  these  points 
have  always  been  considered  perfectly  clear,  con- 
siderable *uncertainty  seems  for  some  time  to  [  *83  ] 
have  prevailed  in  those  cases  of  mala  prohibita^ 
where  the  alleged  right  of  insisting  upon  contribution 
did  not  arise  immediately  out  of  the  illegal  contract  itself, 
but,  to  use  the  expression  of  Lord  Chief  Justice  Eyre,(^f) 
was  one  step  removed  from  it,  as  if  the  money  were 
advanced  by  one,  with  the  consent  and  by  the  direction 
of  the  other  party  involved  in  the  illegal  concern.  And 
this  distinction  was  drawn  between  the  cases  of  partners 
engaged  in  legal  and  illegal  contracts ;  in  the  former,  if 
one  of  the  partners  pay  the  whole  of  a  partnership  debt, 
without  any  express  promise  from  the  other,  the  law,  on 
the  ground  that  both  were  liable  to  pay,  will  give  him  a 
right  to  recover  back  a  moiety  in  an  action  for  money 
paid  to  the  use  of  that  other  partner.  But  in  the  case 
of  illegal  contracts,  as  the  partners  are  not  bound  to 
pay,  one  of  them  cannot  acquire  a  right  of  action  against 
the  other  by  paying  the  whole  without  his  consent :  if, 
however,  it  be  paid  with  his  knowledge  and  consent,  and 
by  his  authority,  the  action  for  contribution  may  be 
maintained,  because  then  the  action  is  not  founded  on  a 
promise  arising  by  implication  of  law  out  of  the  illegal 
transaction,  but  upon  an  express  request  subsequently 
made.  Thus,  where  two  persons  jointly  engaged  in  ille- 
gal stock-jobbing  transactions  with  a  third,  and  a  loss 
having  arisen,  one  of  them  paid  the  whole,  and  took  the 
bond  of  the  other  for  his  proportion,  the  bond  was  de- 
cided to  be  good ;  for,  being  voluntarily  given,  it  created 
a  new  original  duty,  which  could  not  be  impeached,  on 
account  of  the  illegality  of  the  transactions,  which  gave 
rise  to  the  payment  it  was  intended  to  secure.(  g)     So, 

(e)  Per  Lord  Kenyan,  Petrie  v.  Hannay,  3  T.  R.  418.  Ex  parte 
Bell,  1  Mau.  &  Selw.  756.     Biggs  v.  Lawrence,  3  T.  R.  454. 
{/)  Mitchell  V.  Cockburn,2  H.  Bl.  379. 
(  g)  Faikney  v.  Renous,  4  Burr.  2069. 


83  LEGAL   REMEDIES 

where  two  partners  having  sustained  losses  in  similar 
transactions,  employed  a  broker  to  pay  the  differences, 
and  one  of  them  repaid  the  broker  the  whole  sum  with 
the  privity  and  by  the  direction  of  the  other,  the  majo- 
rity of  the  judges  of  the  Court  of  King's  Bench,  con- 
trary to  the  opinion  of  Lord  Kenyan^  determined,  on  the 
authority  of  the  preceding  case,  that  an  action  might 
be  sustained  for  a  moiety  of  the  payment ;  but,  without 
such  direction,  it  was  agreed  that  an  action  would  not 
lie ',  for,  in  consequence  of  the  illegality  of  the  transac- 
tions, the  parties  w  ere  under  no  legal  obligation 
[  *84  ]  to  make  good  their  losses.(/?.)  But  the  *sound- 
ness  of  the  distinction,  established  by  the  two 
last  decisions,  between  express  and  implied  promises  has 
been  much  questioned,  and  the  distinction  itself  may, 
perhaps,  be  said  to  have  been  denied. (z)  For  where 
persons  engage  in  partnership  in  an  illegal  concern, 
each  of  them  must  be  considered  as  giving  an  authority 
to  the  other  to  transact  all  business  relating  to  the  part- 
nership, otherwise  no  profit  could  ever  arise  from  the 
undertaking.  Indeed,  if  such  an  authority  were  not 
impliedly  conferred,  the  partnership  must  be  terminated 
the  moment  occasion  arose  for  the  first  transaction  in 
it.  The  consequence,  therefore,  seems  to  be  this,  that 
if  a  partnership  be  legal,  the  law  raises  an  implied  con- 
sent to  every  payment ;  and  if  it  be  illegal,  yet  if  the 
payment  be  made  in  the  course  of  the  partnership  busi- 
ness, an  implied  consent  may  be  raised  to  that  payment, 
without  which  the  partnership  could  not  subsist  an 
instant.  But,  consistently  with  the  rules  of  law,  an  im- 
plied consent  can,  in  no  instance,  be  so  raised  as  to  con- 
fer a  right  of  action,  where  the  consideration  for  it  is 
bottomed  on  an  illegal  contract,  and  the  case  of  pay- 
ments made  in  the  course  of  an  illegal  partnership  must 
always  be  open  to  the  objection  of  having  an  illicit  foun- 
dation ;  for  if  there  had  been  no  partnership,  a  payment, 
could  not  have  arisen  out  of  it.     The  distinction,  there- 

(A)  Petrie  v.  Hannay,  3  T.  R,  418.  See  the  observation  of  Lord 
Er shine  in  Ex  parte  Bulmer,  13  Ves.  319. ;  and  see  Steers  v.  Leshley, 
6  T.  R.  61.     Brown  v.  Turner,  7  T.  R.  630. 

(f)  Aubert  v.  Maze,  2  Bos.  k  Pul.  371. 


BETWEEN    PARTNERS.  84 

fore,  on  which  the  decisions  in  Faikney  v.  Rejious,  and 
Pefrie  v.  Hannay  proceeded,  being  untenable,  the  cases 
themselves  cannot  be  supported;  and  notwithstanding 
there  be  an  express  request,  the  general  principle,  that 
where  one  person  pays  money  for  another  in  the  course 
of  an  illegal  transaction,  he  cannot  recover  it  back,  will 
apply.  And  whatever  diversity  of  opinion  may  formerly 
have  prevailed  as  to  the  legal  effect  of  a  loan  of  money^ 
where  the  lender  knew  that  the  money  was  borrowed 
for  the  purpose  of  being  applied  to  an  illegal  purpose 
not  malum  in  se,  it  is  now  completely  established,  on 
the  ground  that  that  which  is  malum  prohibitum  can- 
not in  this  view  be  contradistinguished  from  that  which 
is  malum  in  se,  that  the  lender  cannot  resort  to  a 
court  of  justice  to  give  effect  to  any  claim  that  may 
arise  out  of  the  loan,  even  although  the  conduct 
of  the  borrower  be  most  unconscientious.(y)  (1) 
*Thus,  in  a  modern  case,(^)  it  was  held  that  [  *85  ] 
money  lent  for  the  express  purpose  of  settling 
losses  on  illegal  stock-jobbing  transactions,  to  which 
the  lender  was  not  a  party,  and  which  was  so  applied 
by  the  borrower,  could  not  be  recovered  back.  And  if 
before  the  late  statute  enabling  partners  jointly  to  un- 
derwrite policies  of  insurance,(/)  one  of  two  partners, 
who  had  engaged  in  such  transactions,  paid  the  whole 
of  the  losses,  he  could  not  recover  a  moiety  of  the  mo- 
ney so  paid  from  his  co-partner,(m)  although  the  losses 
paid  exceeded  the  premiums  he  received.(?i)    Nor  could 

(j)  Aubert  v.  Maze,  supra.  Webb  v.  Brooke,  3  Taunt.  6.  Ex 
parte  Mather,  3  Ves.  373.  JE.v  parte  Daniels,  14  Ves.  192.  Ottley 
V.  Brown,  1  Ball  &  Beat.  366.  Lightfoot  v.  Tenant,  1  Bos.  &;  Pul. 
554.  Langton  v.  Hughes,  1  Mau.  &  Selw.  594.  Bensley  v.  Bignold, 
5  B.  &;  A.  335.  Evans  v.  Richardson,  3  Meriv.  470.;  but  see  Ex 
parte  Bulmer,  13  Ves.  313. 

[k)  Cannan  v.  Bryce,  3  B.  &  A.  179 ;  and  see  Amory  v.  Mery- 
weather,  2  B.  &  C.  573. 

(I)  5  Geo.  4,  p.  1 14,  s.  1;  and  see  ante,  p.  29. 

(m)  Aubert  v.  Maze,  aiite. 

[n )  Mitchell  v.  Cockburn,  2  H.  Bl.  379. 


(1)   Griswold  v.  Waddington,  16  Johns.  Rep.  486,  487.     Beding 
V.  Pitkin,  2  Caines'  Rep.  147,  (2d  edit.)  and  the  Reporter's  note. 


85  LEGAL  REMEDIES 

he  maintain  an  action  against  the  other  for  premiumis 
received  by  him,(o)  or  to  recover  back  advances,  on 
account  of  payments  to  be  made  on  policies  of  in- 
surance ;  because  such  advances  must  have  been  made 
in  the  very  execution  of  the  illegal  contract.(p)  In  all 
such  cases,  the  claim  of  the  plaintiff  could  not  be  estab- 
lished, except  through  the  illegal  contract  in  which  all 
were  concerned ;  and  it  would  therefore  have  been  in- 
consistent with  the  principles  of  justice,  to  have  allowed 
a  particeps  criminis  to  enforce  such  a  claim  in  a  court 
of  law.  The  same  doctrine  was  recognised  in  a  case 
which  was  recently  brought  under  the  consideration  of 
the  Court  of  Common  Pleas.  There  A  betted  twenty- 
five  guineas  with  B  on  a  horse-race,  of  which  C,  at  his 
own  request,  staked  ten ;  and  A  having  won,  paid  C  ten 
guineas,  in  the  expectation  of  receiving  the  whole 
amount  of  the  bet  from  B,  but  in  which,  in  consequence 
of  B's  death,  he  was  disappointed.  A  having  brought 
an  action  to  recover  from  C  the  ten  guineas,  as  having 
been  paid  on  a  consideration  which  had  failed,  the  Court 
of  Common  Pleas  held  that  the  action  was  not  main- 
tainable, because  A  could  not  make  out  his  claim  with- 
out going  into  proof  of  the  illegal  transaction  on  account 
of  which  it  was  paid.(y)  In  a  case,(r)  where  one  of 
two  joint  underwriters  had  paid  to  a  broker  a  moiety  of 
a  loss  sustained  by  them  upon  a  policy,  in  an  action 

against  the  broker  by  the  underwriter  who  had 
[  *86  ]  *discharged  the  whole  loss,  it  was  held  that  he 

could  not  establish  his  right  to  the  moiety  so 
paid  over;  and  Lord  Kenyon  observed,  that  a  party 
could  not  appeal  to  a  court  of  justice  to  enforce  a  con- 
tract founded  in  a  breach  of  the  law.  But  the  authority 
of  this  determination  has  been  subsequently  shaken,(s) 

(o)  Booth  V.  Hodgson,  6  T,  R.  405. 

(p)  Ex  parte  Bell,  1  M.  &  S.  752. 

Iq)  Simpson  v.  Bloss,  2  Marsh.  542.  S.  C.  7  Taunt.  246,  and 
Holt's  N.  P.  C.  273. 

(A  Sullivan  v.  Greaves,  Parke  on  Insur.  8. 

(s)  See  Tenant  v,  Elliot,  1  Bos.  &  Pul.  3.  Farmer  v.  Russel,  Ibid. 
296.  Thomson  v.  Thomson,  7  Ves.  473.  Where  the  money  was  not 
actually  paid,  but  only  allowed  in  account  between  the  broker  and  one 
of  the  underwriters,  in  an  action  against  the  broker  by  the  other  under- 


BETWEEN  PARTNERS.  86 

and  seemingly  with  reason;  for  although  the  underwri- 
ter has  a  right  to  shelter  himself  under  the  invalidity  of 
such  a  contract,  yet  he  may  waive  the  benefit  which,  by 
so  doing,  he  would  derive  from  its  illegality,  and  con- 
sider it  as  operative  and  bindin;^  upon  him;  and  if  he 
do,  it  is  irreconcilable  with  justice,  that  a  person,  who 
is  a  mere  instrument  of  transmission,  should  be  allowed 
to  intercept  and  appropriate  to  his  oWn  use  what  he  re- 
ceives in  execution  of  the  engagement  entered  into  by 
the  underwriters.(l)  Besides,  in  the  cases  of  contracts 
rendered  illegal  by  legislative  prohibition,  one  partner 
cannot  in  the  action  of  assumpsit  for  money  paid  to  the 
use  of  his  co-partner,  or  in  any  other  action,  recover 
from  him  contribution,  on  a  tort,  for  which  both  have 
been  sued,  and  a  joint  judgment  being  obtained  against 
them,  the  entire  damages  have  been  levied  against  one 
individually.  Thus,  where  (t)  a  sum  of  money  had  been 
recovered  against  two  defendants  in  an  action  for  an 
injury  done  to  a  mill,  in  which  action  was  included  a 
count  in  trover  for  the  machinery,  one  of  the  defendants, 
against  whom  the  whole  had  been  levied,  brought  an 
action  against  the  other  for  a  contribution  of  a  moiety, 
as  for  so  much  money  paid  to  his  use ;  but  the  Court  of 
King's  Bench,  in  affirmance  of  the  opinion  of  Mr.  Ba- 
ron Thompson  at  Nisi  Prius,  determined  that  such  an 
action  would  not  lie,  since  by  law  no  contribution  could 
be  claimed  as  between  joint  wrong-doers.(2)  In  a  re- 
cent case,  however,  which  was  an  action  for  contribu- 
tion by  one  of  two  defendants,  coach  proprietors,  against 

writer  to  recover  the  amount  so  allowed,  the  Court  would  not  sustain 
the  demand;  for,  by  so  doing,  they  would  have  compelled  the  execu- 
tion of  an  illegal  contract,  as  if  it  were  a  legal  one.  Edgar  v.  Fowler, 
3  East,  222. 

(0  Merry  weather  ZJ.  Nixan,  8  T.  R.  186.  See  also  Philips  v.  Biggs, 
Hardr.  164.  Lingard  v.  Bromley,  1  Ves.  &  Bea.  116,  17;  and  the 
observation  of  Bayley,  J.,  Ansell  v.  Waterhouse,  6  Mau.  &  Selw.  H90. 


ll)  See  ^^nderson  v.  Moncreiff,  3  Desaus.  Cha.  Rep.  125. 

(2)  Rose  V.  Oliver  et  al.  2  Johns.  Rep.  365 — the  close  of  Judge 
Spencer's  opinion.  Nor  would  equity  interpose.  Peck  v.  £llis,  2 
Johns.  Cha.  Rep.  131. 

16 


86  LEGAL  REMEDIES 

the  other,  to  recover  a  moiety  of  the  costs  and  damages 
recovered  in  an  action  for  negligence,  it  was  held  that 

upon  its  being  proved  that  the  plaintiff  was  not 
[  *87  ]  personally  ^present  at  the  time  of   the  injury 

complained  of,  and  so  in  no  personal  default,  he 
was  entitled  to  recover.(?<) 

The  action  of  assumpsit  is  in  some  instances  a  neces- 
sary remedy  to  enforce  rights,  which  may  result  to  some 
of  the  partners  from  the  misconduct  of  the  others,  after 
a  general  partnership  has  been  dissolved  or  a  single  joint 
transaction  has  been  terminated.  If,  for  instance,  sub- 
sequently to  a  dissolution,  a  bill  of  exchange  be  drawn 
by  a  single  partner  in  the  partnership  firm,  and  the 
holder  of  the  bill  proceed  against  all  the  partners,  and 
obtain  payment  from  those  who  were  not  privy  to  its 
concoction,  they,  in  an  action  for  money  paid  to  the  use 
of  the  actual  drawer,  may  recover  from  him  the  sum 
they  have  been  compelled  to  pay  in  satisfaction  of  the 
judgment  obtained  against  them  upon  the  bill.(r)  But 
to  enable  them  to  obtain  repayment  of  the  sum  advanced 
in  a  joint  action,  the  payment  must  have  been  joint,  and 
consequently  must  have  been  made  out  of  some  joint 
stock  or  fund ;  and,  generally  speaking,  such  a  fund 
does  not  exist  after  a  dissolution :  where,  however,  the 
attorney  for  the  parties  advanced  part  of  the  sum  re- 
quired on  their  joint  credit,  and  borrowed  the  remainder 
on  their  joint  note,  it  was  held  that  that  created  such  a 
fund  as  would  entitle  them  to  maintain  a  joint  action. (if;) 
But  if  the  payment  be  not  of  the  description  from  which 
a  joint  cause  of  action  can  accrue,  as  if  each  individual 
in  the  first  instance  contribute  his  proportion  out  of  his 
own  separate  funds,  and  with  the  aggregate  the  payment 
be  made,  then  each  contributor  must  bring  a  separate 
action  for  what  he  actually  advanced,  because  quoad 
that  payment  they  were  not  partners.(a:)  Therefore 
where  there  were  three  assignees  of  a  bankrupt's  estate 
who  had  acted  in  the  commission,  and  two  of  them  paid 

(«)  Woolley  V.  Batte,  2  C.  &  P.  N.  P.  C.  417. 

(u)  Osborne  v.  Harper,  5  East,  225.  (tv)  Id.  Ibid. 

{x)  Id.  Ibid..     Graham  v.  Robertson,  2  T.  R.  282. 


BETWEEN  PARTNERS.  87 

the  solicitor's  bill,  it  was  held  that  the  two  could  not 
maintain  a  joint  action  against  the  third  for  contribution, 
but  that  each  ought  to  sue  separately .(y)  So  where 
three  had  entered  into  a  joint  and  separate  bond  of  in- 
demnity to  a  sheriff,  for  the  protection  of  their  separate 
interests,  and  the  sheriff  had  compelled  two  of  them  to 
pay  the  whole  sum,  it  was  holdea  that  they  could  not 
maintain  a  joint  action  against  the  third  for  con- 
tribution.(z)  The  *rule,  however,  which  requires  [  *88  ] 
a  severance  of  actions  where  the  payment  is  not 
made  out  of,  or  in  respect  of  any  joint  fund  or  credit, 
does  not  apply  where  the  payment  in  dispute  has  been 
made  by  some  on  behalf  of  all  the  partners  on  a  partner- 
ship account,  for  in  such  a  case  the  action  for  con- 
tribution must  be  brought  in  the  name  of  all  those  partners 
on  whose  behalf  the  payment  was  made.  Thus,  where 
five  joint  owners  of  a  privateer  and  the  owner  of  another 
privateer  cruised  in  company,  under  an  agreement  to 
share  prizes  equally,  and  a  prize  being  taken  by  the  five 
and  condemned,  a  moiety  of  it  was  paid  to  the  single 
owner;  but  the  sentence  of  condemnation  being  after- 
wards reversed,  and  restitution  ordered,  the  whole  value 
was  repaid  on  the  partnership  account  by  three  of  the 
five,  after  the  bankruptcy  of  the  other  two ;  it  was  de- 
cided by  the  Court  of  King's  Bench,  that,  as  the  pay- 
ment was  on  account  of  the  partnership,  the  three  could 
not  maintain  an  action  against  the  single  owner,  without 
joining  the  assignees  of  the  bankrupt  partners.(a)  (1) 
An  undertaking  by  two  partners  to  pay  a  sum  of  money 

(y)  Brand  v.  Boulcott,  3  Bos.  &  Pul.  235. 

(z)  Kelly  V.  Vernon,  5  Esp.  N.  P.  C.  194.  In  the  case  of  Low  v. 
Copestake,  3  C.  &  P.  N.  P.  C.  300,  where  three  persons,  not  partners 
in  trade,  had  separately  indorsed  a  bill  for  the  accommodation  of  the 
drawer,  and,  on  its  being  dishonoured,  had  paid  in  equal  portions  the 
amount  to  a  party  who  had  discounted  it  subsequently  to  their  indorse- 
ments, it  was  held  that  they  might  strike  out  their  indorsements,  and 
proceed  jointly  as  possessors  of  the  bill  against  a  previous  indorser. 

(a)  Graham  v.  Robertson,  2  T.  R.  382. 


(I)  Manahan  v.  Gibbons  et  al.    Doremus  v.  Seldenet  al.  19  Johns. 
Rep.  109,  213,  426. 


88  LEGAL  REMEDIES 

to -a  third  equally  out  of  their  own  private  funds,  is  a 
joint  undertaking,  and  they  can  only  be  sued  jointly  upon 
it.(b)  Where  and  individual  is  a  common  partner  in 
two  concerns,  no  legal  contract  can. arise  between  the 
partnerships,  and  therefore  no  engagement  entered  into, 
or  debt  incurred,  by  the  one  with  or  to  the  other  can  be 
enforced.(c)  (1) 

The  general  rule  applicable  to  a  bill  of  particulars  of 
demand  delivered  under  a  judge's  order  is,  that  the 
party  shall  be  confined  to  his  particular,  and  not  ad- 
mitted to  give  evidence  of  any  additional  demand ;  but 
under  certain  circumstances,  in  a  case  where  the  proofs 
produced  by  the  defendant  himself  established  another 
claim  in  his  favour,  the  plaintiff  has  been  allowed  to 

have  the  benefit  of  such  evidence  even  beyond 
[  *89  ]  the  contents  of  the  ^particular.     Thus,  where  an 

action  was  brought  by  one  partner  against  an- 
other to  recover  a  balance  due  on  a  statement  of 
accounts ;  the  plaintiff,  by  his  bill  of  particulars,  con- 
fined himself  to  the  balance  due  on  separate  accounts ; 
in  support  of  which  he  gave  in  evidence  an  account,  in 
which  the  defendant  made  himself  debtor  to  a  certain 
amount ;  and  in  answer  to  this  evidence,  the  defendant 
produced  an  account  subsequently  rendered  by  the  plain- 
tiff, according  to  which  there  appeared  to  be  a  balance 
due  to  the  defendant  on  the  separate  accounts ;  but  on 
the  opposite  side  of  the  page,  there  was  a  statement 
also  of  the  partnership  accounts,  on  which  the  balance 
was  in  favour  of  the  plaintiff,  and  greatly  exceeded  the 
balance  on  the  separate  account ;  it  was  objected  that 
the  plaintiff  could  not  recover  beyond  his  particular. 
The  court  however  said,  that  the  defendant  himself  had 
given  the  plaintiff  a  better  case  than  he  was  at  liberty 

(b)  Byers  v.  Dobey,  1  H.  Bl.  286. 

(c)  Boisanquet  t'.  Wray,  2  Marsh.  319.  S.  C.  6  Taunt.  597.  See 
also  Main  waring  v.  Newman,  2  Bos.  &,  Pul.  120.  De  Tastet  v.  Shaw, 
1  B.  &  A.  664.  Neale  v.  Turton,  4  Bingh.  149.  Teague  v.  Hubbard, 
8  B.  &  C.  345.  S.  C.  2  Mann.  &  Ryl.  369..  Jones  v.  Yates,  9  B. 
C.  532.     Harvey  v.  Kay,  Ibid.  356. 

(1)  Per  Duncan,  J.,  Griffith  v.  Chew's  Ex.    8  Serg.  &  Rawle,  30. 


BETWEEN  PARTNERS.  89 

to  make  for  himself,  and  that  the  plaintiff  was  entitled 
to  a  verdict  for  all  that  had  been  proved  to  be  due  to 
him.(c?) 

One  partner  may  maintain  an  action  at  law  against 
his  co-partner,  notwithstanding  it  has  been  agreed  be- 
tween them  that  the  matter  in  dispute  shall  be  deter- 
mined by  an  arbitration ;  because  although  a  reference 
depending,  or  made  and  determined,  might  be  a  bar,  yet 
a  mere  agreement  to  refer  cannot  oust  the  superior 
courts  of  their  general  jurisdiction. (c)  It  has,  indeed, 
been  said  that  many  cases  exist,  in  which,  on  a  plea  of 
an  award,  or  of  a  submission  to  a  reference,  the  court 
has  gone  into  the  merits.(y)  And  although  partners 
covenant  that  all  differences  arising  between  them,  their 
executors  or  administrators,  shall  be  referred  to  the  de- 
cision of  two  indifferent  persons  to  be  elected  by  the 
partners  themselves,  yet,  on  the  death  of  one,  an  action 
cannot  be  maintained  by  his  representatives,  against  the 
other,  for  refusing  to  nominate  a  referee.(^) 

We  have  hitherto  confined  our  investigation  of  the 
legal  remedies  accommodated  to  the  adjustment  of  part- 
nership differences  to  those  actions  alone  which 
arise  out  of  contract.  The  *only  action  of  tort  [  *90  ] 
which,  as  between  partners,  can  result  from  the 
relation  they  have  contracted,  is  the  action  of  trover  to 
recover  damages  for  the  destruction  of  the  joint  proper- 
ty ;  but  it  may  be  doubted  whether  even  such  an  action 
can  be  sustained  between  general  partners  for  the  de- 
struction of  any  specific  article  of  the  joint  property. 
However,  it  is  settled  that  one  joint-tenant,  or  tenant  in 
common,  cannot  maintain  trover  against  his  companion 
for  a  thing  still  in  his  custody,  because  an  unity  of  pos- 
session subsists  between  them,  the  possession  of  one 
being,  in  point  of  law,  the  possession  of  both,  and  the 

((/)  Hurst  V.  Watkis,  1  Campb.  68. 

(e)  Kill  V.  HoUister,  1  VVils.  129.  Thompson  v.  Charnock,  8  T. 
R.  139.     See  also  James  v.  David,  5  T.  R.  141. 

(/)  Michell  V.  Harris,  4  Bro.  C.  C.  311.  S.  C.  2  Ves.  jun.  129. 
See  Coxeter  v.  Anderson,  3  Vin.  Abr.  134.  pi.  19. 

{g)  Tattersal  v.  Groote,  2  Bos.  &  Pul.  131. 


90  LEGAL    REMEDIES 

defendant  may  take  advantage  of  it  on  the  general 
issue.(A)  (1)  Thus,  where  the  plaintiff  and  the  defen- 
dant C  were  members  of  a  friendly  society  which  levied 
a  fund  by  weekly  contribution  from  each  other,  and  the 
aggregate  sum  was  kept  in  a  box  deposited  with  the 
plaintiff,  who  gave  a  bond  for  the  safe  custody  of  it,  C 
took  the  box  away  and  delivered  it  to  the  other  defen- 
dant W,  who  was  not  a  member  of  the  society ;  on  an 
action  of  trover  being  brought,  the  learned  judge  who 
tried  the  cause  nonsuited  the  plaintiff,  and  the  Court  of 
King's  Bench,  on  an  application  for  a  new  trial,  con- 
firmed the  nonsuit,  and  said,  that  as  all  the  members  of 
the  society  had  a  joint  property  in  the  box  and  its  con- 
tents, they  were  therefore  tenants  in  common,  and  it  was 
an  undoubted  rule  that  one  tenant  in  common  cannot 
maintain  trover  against  another.  And,  moreover,  as  it 
was  admitted  that  one  of  the  defendants  was  a  member 
of  the  society,  he  had  a  general  property  in  the  box,  and 
therefore  a  special  property,  such  as  the  plaintiff  had 
(the  custody  only  having  been  committed  to  him,  and 
the  general  property  still  remaining  in  the  society), 
could  not  give  a  right  in  this  action  against  a  general 
property .(«)  (2)  So,  where  after  an  act  of  bankruptcy 
committed  by  one  of  two  partners,  joint  effects  were 
sent  aw  ay,  which  came  to  the  defendant's  hands ;  then 
the  solvent  partner  died,  leaving  the  defendant  his  exe- 
cutor, and  afterwards  a  commission  of  bankrupt  was 
taken  out  against  the  surviving  partner,  and  his  estate 
assigned  to  the  plaintiffs  ;  it  was  holden,  that  they  Avere 
tenants  in  common  with  the  solvent  partner,  and 
after  his  decease  with  his  representatives,  by  relation 

{h)  Co.  Litt.  200.  a.  Brown  v.  Hedges,  1  Salk.  290.  Bull.  N.  P.  34. 
Brammel  v.  Jones,  cited  Sehv.  N.  P.  (5th  ed.)  1313.  Com.  Dig.  Tit. 
Estates,  K.  8. 

(i)  HoUiday  v.  Camsell,  1  T.  R.  658. 


(1)  Per  Spencer,  C.  J.,  2  Caines'  Rep.  167.  Cowan  et  al.  v. 
Buyers,  Cook's  Rep.  53.  Chinn  et  iix.  v.  Respass,  1  Monroe's  Rep. 
29.  Gilbert  v.  Dickerson,  7  Wend.  Rep.  449.  Farr  v.  Smith,  9 
Wend.  Rep.  338. 

(2)  Clay  V.  Gnibhs,  1  Ljltel's  Rep.  22. 


BETWEEN    PARTNERS.  91 

from  the  act  of  bankruptcy ;  and  *consequently  [  *91  ] 
could  not  maintain  trover  against  the  defendant 
claiming  under  such  solvent  partner.(A:)  Upon  the  same 
principle,  where  after  an  act  of  bankruptcy  committed 
by  one  of  two  partners  the  other  delivered  goods,  part 
of  their  joint  property,  to  a  creditor,  for  a  joint  debt, 
and  died,  and  afterwards  a  commission  issued  against 
the  surviving  partner,  it  was  holden  that  the  creditor, 
by  virtue  of  such  delivery  by  the  solvent  partner,  be- 
came tenant  in  common  of  the  goods  with  the  assignees 
of  the  bankrupt  by  relation  from  the  act  of  bankruptcy, 
which  was  in  the  lifetime  of  the  solvent  partner,  and, 
consequently,  that  the  assignees  could  not  maintain  tro- 
ver against  such  creditor.(/)  But  if  one  joint-tenant, 
or  tenant  in  common,  destroy  the  thing  in  common,  the 
other  may  bring  trover  against  him,  because  that 
amounts  to  a  wrongful  conversion. (??i)  (1)  Therefore, 
where  it  appeared  that  one  tenant  in  common  of  a  ship 
had  forcibly  taken  it  out  of  the  possession  of  his  com- 
panion,^ and  secreted  it  from  him,  so  that  he  knew  not 
where  it  was  carried,  and  changed  the  name  of  it,  and 
it  afterwards  got  into  the  hands  of  a  third  person,  who 
sent  it  on  a  foreign  voyage,  where  it  was  lost  in  a  storm, 
this  was  held  by  Lord  King  to  be  evidence  of  a  destruc- 
tion, and  the  jury,  under  his  directions,  found  it  to  be 
so.(w)  (2)  The  preceding  case  proceeded  upon  the  prin- 

{k)  Smith  V.  Stokes,  1  East,  363. 

(Z)  Smith  V.  Oriell,  1  East,  368. 

im)  Co.  Lit.  200.  a. 

(n)  Barnardiston  i'.  Chapman,  Bull.  N.  P.  34,  35.  S.  C.  cited  m 
Heath  V.  Hubbard,  4  East,  121.  See  also  Penning  v.  Lord  Grenvdle, 
1  Taunt.  241.  Cubitt  v.  Porter,  2  Mann.  &  Ryl.  207.  S.  C.  8  B.  & 
C.  257.     Voyce  v.  Voyce,  Gow's  N.  P.  C.  201 . 


(1)  Per  Spencer,  C.  J.,2Caines'  Rep.  167.  Coivan  et  al.  v.  Buyers, 
Cooke's  Rep.  58.  Wiiat  amounts  to  adestrucfion,  Sheldon  v.  Skinner, 
4  Wend.  Rep.  525.  So  if  he  sell  the  whole  of  it.  TrUson  et  al.  v. 
Feed,  3  Johns.  Rep.  175.  Thompson  v.  Cook,  2  South.  Rep.  580. 
But  not  if  it  be  sold  by  a  creditor  for  a  debt  due  by  one  tenant  in  com- 
mon. Bell  V.  Layman,  1  Monroe's  Rep.  40.  St.  John  v.  Standring, 
2  Johns.  Rep.  468.     Mersereau  v.  Norton,  15  Johns.  Rep.  179. 

(2)  Lowthorp  v.  Smith,  1  Hayw.  Rep.  255. 


92  LEGAL    REMEDIES 

ciple  that  there  was  a  destruction  of  the  subject  matter, 
and  it  is  now  estabUshed  that  one  tenant  in  common 
cannot  recover  for  a  chattel  in  trover  against  his  com- 
panion, without  first  proving  a  destruction  of  the  chattel, 
or  something  that  is  equivalent  to  it.  Hence  where  one 
of  two  tenants  in  conuiion  of  a  whale  cut  it  up  and  ex- 
pressed the  oil,  it  was  determined  that  such  alteration  in 
the  form  of  the  property  did  not  amount  to  a  tortious 
conversion,  so  as  to  enable  the  companion  to  maintain 
trover ;  for  the  act  done  was  an  application  of  the  whale 
to  the  onjy  purpose  which  could  make  it  profitable  to 
the  owners,  and  tended  to  preserve  instead  of  destroy- 
ing it,  which  one  tenant  in  common  was  clearly  entitled 
to  do ;  and  as  the  parties  were  clearly  tenants  in  com- 
mon of  the  whale,  they  became  tenants  in  com- 
[  *92  ]  mon  of  the  produce,  *after  it  was  converted  into 
oil.(o)  It  does  not  appear  to  be  established 
whether  a  sale  by  one  tenant  in  common,  or  joint-tenant, 
of  the  joint  property  is  such  a  conversion  as  will  entitle 
the  co-tenant  to  maintain  an  action  of  trover.  There 
may  be  cases,  in  which  the  indivisible  nature  of  the  pro- 
perty held  in  common  may  raise  an  implied  authority  in 
one  to  sell  the  whole,  and  such  a  power,  as  we  have 
already  seen,(  ;> )  is  clearly  vested  in  each  member  of  a 
firm.  But  unless  there  be  an  express  or  implied  autho- 
rity, a  sale  of  the  whole  by  one  tenant  in  common  is,  it 
seems,  with  respect  to  the  other,  a  wrongful  conversion 
of  his  undivided  part.(9')  (1) 

(o)  Penning  v.  LorJ  Grenville,  ante.  It  was  admitted  in  this  case, 
that  the  taking  by  the  defendant,  and  the  refusal  to  deliver  on  demand 
made,  was  not  any  misfeasance  in  a  tenant  in  common,  and  did  not 
give  a  right  of  action.     See  Martyn  v^  KnowUys,  8  T.  R.  146. 

{jpi)  See  ante,  p.  51. 

{q)  Barton  v.  Williams,  5  B.  &  A.  395.  Jackson  v.  Anderson,  4 
Taunt.  24.  Heath  v.  Hubbard,  4  East,  110.  The  sale  of  the  whole 
of  a  ship  by  one  who  is  only  a  part-owner,  in  exclusion  of  the  right  of 
another,  who  is  tenant  in  common  with  him,  is  not,  it  should  seem, 
equivalent  to  the  destruction  of  the  subject  matter,  mediately  or  imme- 


(1)  JFilson  et  al.  v.  Reed,  3  Johns.  Rep.  175.  Thompson  v.  Cooh, 
2  South.  Rep.  580.  But  a  sale  by  a  partner  of  all  the  partnership 
effects  would  not  be.     Mountjoys  v.  Holden,  Littel's  Sel.  Cases,  447. 


BETWEEN    PARTNERS.  92 

Notice  by  one  partner  that  the  partnership  has  been 
dissolved,  is  evidence  against  that  partner  that  it  has 
been  dissolved  by  competent  means,  even  by  a  deed,  if 
a  deed  be  essential  ;(r)  and  in  such  a  case  an  ejectment 
lies,  upon  the  demise  of  one  co-partner  against  another, 
for  a  house  agreed  to  be  occupied  jointly  during  the 
partnership,  without  proof  of  a  notice  to  quit.(s) 

Where  the  parties  contest  the  question  of  partnership 
inter  sc,  it  seems  that  such  evidence  as  would  be  suffi- 
cient to  establish  their  partnership  in  a  suit  by  a  stranger 
will  raise  a  presumption  of  the  fact  of  partnership  as 
amongst  themselves.(0  ^"^  where  A,  who  had  been  a 
partner  with  B  in  a  particular  commercial  adventure, 
sent  to  B  an  account,  stating  a  loss,  and  B,  on  applica- 
tion being  made  to  him  for  one  moiety  of  such  loss, 
stated  that  he  would  call  and  settle  with  A,  this  was 
held  to  be  evidence  of  an  adjustment  of  the  amount 
between  the  parties  in  an  action  by  A  to  recover  the 
moiety.(i^) 


SECTION  IV.  [  *  93  ] 

Equitable  Remedies  between  Partners. 

Besides  the  legal  remedies  we  have  enumerated  as 
being  open  to  partners  for  the  redress  of  wrongs  arising 
inter  se,  relief  is,  in  most  instances  of  partnership  dis- 
sensions, administered  in  a  court  of  equity.  Where, 
indeed,  one  partner  has  reason  to  complain  of  another 
concerning  pecuniary  transactions,  the  most  advisable 
course  to  pursue  is  to  file  a  bill  praying  a  discovery,  and 
that  the  defendant  may  account.    Such  a  dispute,  which 

diately,  so  as  to  enable  his  co-tenant  to  maintain  trover  against  him  for 
it.  Id.  Ibid.  Com.  Dig.  tit.  Estates  K.  8.  See,  also,  Graves  v.  Sawyer, 
T.  Ravm.  15. 

(r)  Doc  d.  Waithman  v.  Miles,  1  Stark.  N.  P.  C.  181.  S.  C.  4 
Campb.  373. 

(«)  Id.  ibid. 

It)  Per  Lord  Ellmhorough,  Peacock  v.  Peacock,  2  Campb.  45. 

\ii)  Clark  V.  Glennie,  3  Stark.  N.  P.  C.  10. 

17 


93  EQUITABLE  REMEDIES 

is  often  of  a  complicated  nature,  and  rests  only  in  the 
knowledge  of  the  party,  is  better  adjusted  in  a  court  of 
equity,  which  applies  itself  to  the  conscience  of  the  de- 
faulter, and  purges  him  upon  oath,  with  regard  to  the 
truth  of  the  transaction.  The  truth  being  once  ascer- 
tained, the  judgment  is  generally  the  same  in  equity  that 
it  would  have  been  at  law ;  but,  for  this  purpose,  the 
mode  of  administering  justice  in  courts  of  equity,  the 
mode  of  proof,  the  mode  of  trial,  and  the  mode  of  relief, 
are  found  far  better  calculated  for  the  adjustment  of  dif- 
ferences of  this  description,  than  the  ordinary  remedies 
afforded  for  the  purpose  at  law. 

Under  the  head  of  account^  it  has  been  said,  partnership 
dealings  form  the  subject  of  equitable  cognizance.(a)(l) 
The  ground  upon  which  courts  of  equity  first  interfered 
in  these  cases,  seems  to  have  been,  the  difficulty  of  pro- 
ceeding to  the  full  extent  of  justice  in  the  courts  of  com- 
mon law.(6)  Thus,  though  accounts  may  be  taken 
before  auditors  in  an  action  of  account  in  the  courts  of 
common  law,  yet  a  court  of  equity,  by  its  modes  of  pro- 
ceeding, is  enabled  to  investigate  more  effectually  long 
and  intricate  accounts  in  an  adverse  way,  and  to  com- 
pel payment  of  the  balance  whichever  way  it  turns. 
And,  unless  there  be  an  admitted  balance,  we  have 
seen,(c)  that  partners  cannot,  in  a  court  of  law,  obtain 
any  redress  through  the  medium  of  an  action  of  as- 
sumpsit ;(c?)  but,  in  such  a  case,  the  right  to  an 
[  *94  ]  account  in  ^equity  is  clear.  However,  to  entitle 
a  partner  to  relief,  it  is  now  established,  notwith- 
standing a  former  decision  to  the  contrary,(e)  that  the 
partnership  in  respect  of  which  the  relief  is  prayed  must 

(a)  3  Black.  Com.  437. 
(6)  Lord  Redesdale's  Tr.  on  PI.  (3d  ed.)  96. 
(c)  See  ante,  p.  74. 

((/)  See,  also,  Rex  v.  Whitstable  Company,  7  East,  353.     Adley  v. 
Whilstahle  Company,  17  Ves.  326. 
( e)  Watts  V.  Brookes,  3  Ves.  612. 

(1)  Especially  where  other  articles  besides  money  must  be  taken 
into  account.  Lansdale  v.  Brashear,  3  Monroe's  Rep.  330 — the  case 
of  a  partnership  in  farming. 


BETWEEN  PARTNERS.  94 

be  legal;  if  it  be  not,  a  bill  for  an  account  cannot  be 
sustained.     Therefore,  where  two  persons  jointly  en- 
gaged in  the  business  of  underwriters,  which   was  pro- 
hibited by  the  act  of  parliament(/)  in  favour  of  the 
chartered  companies,  a  bill,  filed  by  one  against  the 
other,  for  an  account  of  the  profits,  was  dismissed.(^) 
And  if  an  unincorporated  society  act,  or  assume  to  act, 
in  a  corporate  character,  or  take  upon  itself  the  sem- 
blance of  a  corporation,  a  court  of  equity  will  not  inter- 
pose its  authority  and  grant  relief  inter  sc.Qi)  But  where 
partners  embark  in  two  species  of  trade,  the  one  legal 
and  the  other  illegal,  relief  will  be  administered  in  respect 
of  the  trade  that  is  not  tainted  with  illegality,  although 
with  regard  to  the  other  it  will  be  refused.    Thus,  where 
persons  united  in  business  as  brokers  and  underwriters, 
on  a  bill  being  filed  by  the  one  against  the  other  for  a 
general  account,  the  court  allowed  it  as  to  the  broker- 
age, but  disallowed  it  as  to  the  underwriting  business.(z) 
And  this  distinction  has  been  taken:  as  between  the 
partners,  no  account,  having  reference  to  dealings  pro- 
hibited by  law,  can  be  enforced,  for  this  would  be  giving 
relief  to  a  particeps  criminis;  but,  after  the  decease  of 
one  of  the  partners,  his  executor  cannot,  as  against 
creditors  and  legatees,  refuse  an  account  of  profits  made 
by  his  testator  in  the  course  of  such  illegal  transac- 
tions.(^)     Where  the  transactions,   out  of  which  the 
application  for  relief  arises,  do  not  contravene  the  policy 
of  the  common  law,  or  the  provisions  of  a  statute,  the 
remedy  will   not   be   confined  to  private  partnerships 
alone,  for  a  court  of  equity  has  jurisdiction  against  a 
corporation,  in  the  nature  of  a  partnership,  on  a  bill  filed 
for  an  account  of  the  profits.(/)    But  the  court,  before 

(/)  6  Geo.  1,  c.  18,  §  12.  This  prohibition  has  been  removed  by 
the  5  Geo.  4,  c.  114,  §  1. 

(,^)  Knowles  v.  Haughton,  11  Ves.  168.  Cousins  v.  Smith,  13  Ves. 
542. 

(/i)  Vansandau  v.  Moore,  and  Kinder  v.  Taylor,  coram  Lord  Eldon, 
March,  1825.     Lloyd  v.  Loaring,  6  Ves.  773. 

(i)  Knowles  V.  Haughton,  supra. 

[k)  Joy  V.  Campbell,  1  Sch.  &  Lef.  328.  Ottley  v.  Browne,  1  Ball 
&  Beat.  360. 

{/)  Adley  «.  Whitstable  Company,   17  Ves.  315.     S.  C.   1  Meriv. 


94  EQUITABLE  REMEDIES 

it  interferes  with  voluntary  associations,  will  see 
[*95]  that  it  is  under  an  obligation  to  act,  and  *that  it 
can  eflectually  act  for  the  benefit  of  all  the  per- 
sons interested;  and  where  such  associations  have  not 
conformed  to  or  observed  the  articles  by  which  they 
were  formed,  the  court  will  not  interpose.  Therefore, 
where  a  fire  association  was  constituted  on  the  principle 
of  mutual  guarantee,  and  the  business  had  not  been  con- 
ducted consistently  with  the  provisions  of  the  deed  of 
settlement,  nor  had  the  different  officers  been  appointed. 
Lord  Eldon  refused  to  interfere  on  an  interlocutory  ap- 
plication, until  the  deed  had  been  acted  upon,  and  the 
parties  invested  with  the  characters  they  ought  to  have 
according  to  the  deed.(m)  And  in  respect  to  partner- 
ships in  general,  it  was  in  a  late  case  said,(yi)  that  there 
was  no  instance  of  a  partner  being  allowed  to  pray  for  an 
account  merely,  and  not  for  a  dissolution  of  the  partner- 
ship; for,  otherwise,  a  partner  might  file  a  bill  annually 
for  an  account,  and,  that  a  bill,  to  be  sustainable,  must 
either  show  a  dissolution  of  the  partnership,  or  pray  that 
it  may  be  dissolved.  This  doctrine,  however,  has  in  its 
generality  been  denied,  and  it  has  been  observed,  that  a 
bill  for  an  account  is  the  only  relief  that  a  partner  has; 
and,  as  to  the  necessity  of  praying  a  dissolution,  it  is 
required  only  in  the  case  of  an  application  for  interim 
management,  which  will  hot  be  granted  unless  the  bill 
contain  such  a  prayer.(o) 

It  is  a  general  rule,  that  however  numerous  the  per- 
sons may  be  who  are  materially  interested  in  the  sub- 
ject of  a  suit,  they  must  nevertheless  be  all  made  parties, 

107.  Attorney  General  v.  Governors  of  the  Foundling  Hospital,  2  Ves. 
jun.  42. 

(m)  Ellison  v.  Bignold,  2  Jac.  &.  Walk.  50.3. 

(n)  Forman  v.  Homfray,  2  Ves.  &;  Bea.  329.  See  also,  Waters  v. 
Taylor,  15  Ves.  10. 

(o)  Harrison  v.  Armitage,  4  Madd.  143  ;  and  see  Marshall  v.  Col- 
man,  2  Jac.  &  Walk.  266.  Knowles  v.  Haughton,  11  Ves.  168.  In 
the  late  case  of  Kinder  v.  Taylor,  Lord  Eldon  expressed  an  opinion, 
that,  where  a  partnership  is  limited  as  to  time,  unless  a  court  of  equity 
was  called  upon  to  dissolve  it,  it  would  not  interfere  during  its  subsis- 
tence for  the  purpose  merely  of  directing  periodical  accounts  to  be 
rendered. 


BETWEEN  PARTNERS.  95 

plaintiffs,  or  defendants,  so  that  a  complete  decree  may 
be  made  between  them  ;(o)  it  being  the  constant  aim  of 
a  com-t  of  equity  to  do  complete  justice  by  embracing 
the  whole  subject,  and,  by  deciding  upon  and  settling 
the  rights  of  all  persons  interested,  not  only  to  make 
the  performance  of  the  order  of  the  court  perfectly  safe 
to  those  who  are  compelled  to  obey  it,  but  to  prevent 
future  htigation.  When,  therefore,  one  partner 
is  compelled  to  institute  proceedings*  in  a  court  [  *96  ] 
of  equity  with  a  view  of  enforcing  an  account 
from  his  co-partners,  or  for  any  other  purpose,  he  must, 
to  avoid  an  objection  of  a  want  of  parties,  make  all  the 
partners  parties  to  the  record.  For  when  the  court  is 
called  upon  at  the  instance  of  one  partner  to  direct  the 
partnership  accounts  to  be  taken,  or  to  compel  the  other 
partners  to  do  or  to  abstain  from  doing  specific  acts,  it 
cannot  administer  the  relief  which  is  asked,  in  the  absence 
of  any  of  those  persons  upon  whom  the  decree  is  intended 
to  operate,  because  of  its  inability  effectually  to  bind 
t\iem.(p)  And  if  all  the  partners  are  not  made  parties, 
the  defendants  may  either  demur  to  the  bill,  or,  when 
the  cause  comes  on  to  a  hearing,  they  may  object  that 
proper  parties  are  wanting,  or  the  court  may  refuse  to 
proceed  to  a  decree,  or  if  the  court  makes  a  decree,  that 
decree  may  be  afterwards  reversed.(9')  But  where  one 
of  several  partners  agrees  with  a  third  person  to  give 
him  a  moiety  of  his  share,  an  account  may  be  decreed 
between  them,  without  making  the  other  partners  par- 
ties,(r)  And  the  general  rule,  requiring  all  persons  in- 
terested to  be  brought  before  the  court,  is  sometimes 
relaxed.  Thus,  where  a  great  many  individuals  are  con- 
cerned in  the  subject  of  the  suit,  the  court  will  permit  a 
few  to  represent  the  whole,  and  sue  on  their  behalf.(s) 

(o)  Lord  Redesdale's  Tr.  on  PI.  145. 

( p)  Vansandau  v.  Moore,  and  Kinder  v.  Taylor,  ante.  See  Legh 
V.  Thomas,  2  Ves.  sen.  312. 

(7)  Pr.  Reg.  299.  ed.  Wyatt.  Coop.  Tr.  on  PI.  33.  A  plea  of 
want  of  parties  will  also  hold,  Beames  on  PI.  in  Eq.  148. 

(?•)  Brown  v.  De  Tastet,  1  Jac.  284, 

(s)  Lord  Harwicke's  MS.  notes  cited  by  Lord  Eldon,  6  Ves.  779. 
11  Ves.  429.     Meux  v.  Maltby,  2  Swanst.  277. 


96  EQUITABLE  REMEDIES 

This  was  done  in  the  cases  of  the  Opera  House,  the 
Royal  Circus,  and  Drury-Lane  Theatre.(/)  And  in  the 
case  of  the  bubble,(M)  in  which  many  persons  Avere  in- 
terested, and  they  delegated  a  fijeneral  power  and  au- 
thority to  few  only,  the  court,  to  avoid  the  inconvenience 
of  making  the  whole  number  parties,  restrained  them  to 
the  particular  persons  who  were  entrusted  with  the  gen- 
eral power.  With  respect  to  this  determination,  it  has 
•  been  remarked,  that  if  the  whole  was  a  bubble,  it  was 
not  necessary  to  make  more  of  the  members  parties ; 

for  the  interest  of  the  society,  instead  of  being 
[  *97  ]  simply  regulated,  would  be  declared  *illegal,  and 

as  all  possessed  the  same  interest  in  attempting 
to  prove  the  legality  of  the  scheme,  the  presence  of  any 
of  them  would  be  sufficient  to  enable  the  court  to  decide 
that  question.(v)  But  where  the  society,  in  respect  of 
which  relief  is  asked,  is  not  founded  on  such  principles 
as  to  render  it  a  bubble,  it  seems  doubtful  whether  any 
departure  from  the  general  rule  will  be  allowed  in  cases 
of  dissensions  amongst  the  members  themselves.  Lord 
Eldon  has  said  that  it  is  wholesome  to  apply  the  ordinary 
rules  to  such  cases  equally  with  others,  as  that  the  same 
parties  shall  be  required  as  in  another  case,  that  the  pre- 
sence of  parties  shall  not  be  dispensed  with,  and  that 
the  same  regularity  of  proceeding  shall  take  place.(zfj) 
This  may  be  feasible  where  the  number  of  members  is 
manageable,  but  in  the  case  of  a  society  whose  num- 
bers are  so  great  as  to  render  it  almost  impracticable  to 
introduce  all  of  them  on  the  record,  an  adherence  to 
the  ordinary  rules  may  have  the  effect  of  shutting  out 
the  members  of  the  society  from  all  relief.  And  although, 
generally,  it  is  true  that  the  difficulty  arising  from  the 
number  of  parties  ought  not  to  be  allowed  to  baffle  the 

(t)  6  Ves.  779.     But  see  Waters  v.  Taylor,  15  Ves.  10, 

(w)  Cited  by  Lord  Harwiche  in  Vernon  v.  Blackerby,  2  Atk.  145. 

ly)  Per  Lord  Eldon,  Kinder  v.  Taylor,  ante.  And  see  Cousins  v. 
Smith,  13  Ves.  542.  Buckley  v.  Cater,  17  Ves.  15.  Pearce  v.  Piper, 
Ibid.  1.     Beaumont  v.  Meredith,  3  Ves.  &c  Bea.  180. 

{w)  Waters  v.  Taylor,  15  Ves.  10.  In  Chancy  v.  May,  Pre.  in  Ch. 
592,  part  of  the  proprietors  of  the  Temple  Mills  Brass  Works  were 
were  permitted  to  bring  some  others  of  them  to  account  without  mak- 
ing all  the  members  parties. 


BETWEEN  PARTNERS.  97 

means  which  a  court  of  equity  possesses  of  doing  effectu- 
al justice,(.r)  yet  it  should  not  be  forgotten  that  to  con- 
troversies in  which  the  company  may  happen  to  be  en- 
gaged with  third  persons  the  ordinary  rule  applies ;  for 
in  a  suit  by  them  as  partners,  they  would  be  bound  to 
set  forth  the  names  of  all  their  body  when  acting  against 
a  stranger,  and  it  would  be  equally  incumbent  on  him 
who  prosecuted  claims  against  them  to  bring  all  before 
the  court.  The  legislature,  indeed,  has  frequently  re- 
medied the  inconvenience  of  administering  justice  to 
such  numbers  as  those  of  whom  a  company  usually 
consists,  by  empowering  them  to  sue,  and  rendering 
them  liable  to  be  sued,  in  the  name  of  their  secretary, 
or  some  other  officer  or  servant  of  the  company,  and  so 
far  it  renders  the  company  a  quasi  corporation ;  but 
even  in  those  instances,  suits  amongst  the  members 
themselves  are  not  contemplated,  nor  is  any  pro- 
vision made  in  the  event  of  the  society  *being  [  *98  ] 
divided  against  itself.  In  a  late  case,(?/),  in  which 
some  of  the  members  of  the  Be?ievoknt  Union  Society,  on 
behalf  of  themselves  and  the  other  members  filed  a  bill 
against  the  six  defendants  who  were  the  trustees,  praying 
an  account  and  injunction,  and  that  the  defendants  might 
be  decreed  to  replace  part  of  the  stock  of  the  society 
which  they  had  sold  out,  and  it  appeared  that  the  num- 
ber of  members  was  limited  to  sixty-one,  that  the  society 
had  been  dissolved,  and  that  forty-seven  members,  who 
were  not  parties,  had  received  their  shares  of  the  trust 
funds.  Lord  Eldon  refused  to  interfere  until  they  were 
brought  before  the  court.  So,  where  upwards  of  one 
hundred  persons  formed  themselves  into  a  company  for 
procuring  copper,  under  the  management  of  a  committee, 
and  agreeably  to  certain  articles  of  co-partnership ;  a 
bill  filed  by  three  of  the  partners  against  the  members 
of  the  committee  for  inspection  of  the  accounts,  but  not 
filed  in  behalf  of  the  other  shareholders,  was  held  not 
sustainable ;  for  the  court  could  not  bind  all  the  part- 
ners as  to  the  construction  of  the  articles,  on  a  matter 

x)  Adley  v.  Whitstable  Company,  1  Meriv.  109. 
2/)  Beaumont  v.  Meredith,  3  Ves,  &;  Boa.  180. 


98  EQUITABLE  REMEDIES 

of  general  interest,  where  three  only  were  plaintiffs,  and 
the  committee,  who  were  not  authorised  to  represent  the 
partnership,  were  the  only  defendants. (2^)  Indeed  it  has 
been  considered,  that  if  some  of  the  members  of  a  com- 
pany were  allowed  to  file  a  bill  on  the  behalf  of  all, 
praying  a  dissolution,  a  difficulty  must  arise,  if  some  of 
those,  on  whose  behalf  the  bill  purports  to  be  exhibited, 
were  desirous  that  the  operations  of  the  company  should 
be  continued.(«)  And  where  some  of  the  members  of 
a  mutual  guarantee  association  are  dissatisfied  with  the 
conduct  of  those  to  whom  the  management  is  intrusted, 
it  seems  that  the  court  will  not  entertain  a  bill  for  relief 
unless  all  the  members  are  actually  brought  before  it, 
either  in  the  characters  of  plaintiffs  or  defendants;  because 
each  has  an  interest  in  the  common  fund,  and  is  entitled 
to  be  heard  in  every  proceeding  which  may  affect  it.  And 
a  bill  filed  in  such  a  case  by  some  on  behalf  of  themselves 
and  all  the  other  members  of  the  association,  will  not  be 
free  from  objection ;  for,  the  defendants  being  members, 
the  record  would  present  them  in  the  double,  but  opposite, 
characters  of  plaintiffs  and  defendants,  which  are  situa- 
tions w^hich  no  man  can  sustain  at  the  same  time. 
[  *99  ]  Thus,  *where  four  members  of  the  Norwich  Union 
Fire  Association  (which  was  an  institution  estab- 
lished on  the  principle  of  mutual  guarantee,  and  con- 
sisted of  si-xty  thousand  members,)  filed  a  bill  on  behalf 
of  all  the  members  against  the  defendants,  who  were 
the  directors,  treasurers,  bankers,  and  secretary  (and 
also  members)  of  the  institution,  praying  relief  and  an 
injunction.  Lord  Eldon,  on  the  ground  of  want  of  par- 
ties, refused  to  interpose  on  an  interlocutory  motion, 
and  suggested  his  doubts  as  to  the  possibility  of  bring- 
ing proper  parties  before  the  court  under  such  circum- 
stances.(6)  And  in  all  cases  in  which  an  individual 
member  of  a  company  files  a  bill,  com|)laining  of  mis- 
management on  the  part  of  its  officers,  and  praying  that 
it  may  be  dissolved,  the  whole  number  of  the  sharehold- 

(z)  Baldwin  v.  Lawrence,  2  Sim.  &,  Stu.  18. 
(a)  Carlen  v.  Diury,  1  Ves.  &  Bea.  154. 

(6)  Davis  V.  Fisk,  stated  in  the  Appendix  to  Mr.  Farren's  Treat,  on 
Life  Assurance,  p.  128. 


fiEtWEEN  PARTNERS.  99 

ers,  must,  it  seems,  be  made  parties ;  because,  as  tbe  ac- 
counts of  tbe  company  must,  under  such  a  bill,  be  taken, 
the  court,  unless  all  the  shareholders  are  before  it,  can- 
not compel  each  to  pay  in  his  entire  subscription,  which 
must  necessarily  be  done  before  the  accounts  can  be  ad- 
justed ;  nor  can  the  court,  in  the  absence  of  any  of  the 
members,  dispose  of  their  rights,  or  ultimately  direct  a 
sale  of  the  property  of  the  company.(c)     When,  there- 
fore, dissensions  exist  among  partners,  it  is  necessary 
that  all  those  who  constitute  the  partnership  should  be 
brought  before  the  court;  and  where  a  bill  is  filed  for  an 
account  of  partnership  transactions,  it  is  equally  neces- 
sary that  each  individual,  introduced  on  the  record  as  a 
defendant,  should  sustain  the  character  ascribed  to  him ; 
for,  if  he  do  not,  he  may  protect  himself  generally  from 
answer  and  discovery  as  to  the  subject  of  the  suit,  By 
pleading  that  he  is  not  a  partner(c?)(l);  and,  in  such  a 
case,  the  court  will  direct  an  issue  to  try  whether  a  part- 
nership exists  or  not;  of  which  issue,  if  the  result  is  that 
he  is  not  a  partner,  the  bill  will   be  dismissed.(e)     But 
if,  in  addition  to  the  general  charge  of  the  existence 
of  the  partnership,  circumstances  are   alleged   in  the 

(c)  Vansandau  v.  Moore,  and  Kinder  v.  Taylor,  coram  Lord  Eldon. 

\d) V.  Harrison,  4  Madd.  252,  overruling  the  case  of  the 

Marquis  of  Donegal  v.  Stewart,  3  Ves.  446,  in  which  it  was  held  that 
a  party  might  avail  himself  of  such  a  defence  by  answer. '  See  also 
Drew  V.  Drew,  2  Ves.  &l  Bea.  159.  Norway  v.  Roe,  19  Ves.  144. 
In  what  cases  a  negative  plea  is  good  in  equity,  see  Beames  on  PI.  in 
Eq.  120.  et  seq. 

(e)  Peacock  v.  Peacock,  16  Ves.  52.  Binford  v.  Domraett,  4  Ves. 
756. 


(1)  In  New  York  it  has  been  decided  that  a  defendant  may  avail  of 
such  a  defence  by  his  ansioer.  Philips,  v.  Frevost,  4  Johns.  Cha. 
Rep.  205.  Methodist  Episc.  Church  v.  Jaques,  1  Johns.  Cha.  Rep- 
65.  The  rule  laid  down  by  the  Vice  Chancellor,  in v.  Harri- 
son, seems  now  to  be  settled  law  in  the  Court  of  Chancery  in  Eng- 
land, but  the  rule  in  the  Exchequer  is  in  conformity  with  the  opinion 
of  Chancellor  Kent ; — and  therefore  where  a  plaintiff  stated  a  partner- 
ship, and  called  for  an  account,  and  the  defendant  by  his  answer  denied 
the  partnership,  and  set  forth  no  account,  the  Court,  on  exception  to 
the  answer,  held  it  sufRcient.  Jacobs  v.  Goodman,  2  Cox's  Ca-  282. 
S.  C.  3  Bro.  C.  C.  488,  n.  {BeWs  edit.) 

18 


100  EQUITABLE  REMEDIES 

[*100]  bill  as  evidence  of  it,  a  plea  denying  *the  partner- 
ship will  not  protect  the  defendant,  unless  it  be 
accompanied  by  an  answer  and  discovery  as  to  the  mat- 
ters specially  charged  as  evidence  of  the  plaintiff's  title  ; 
because  a  defendant  is  bound  to  answer  to  all  collateral 
circumstances  charged  as  evidence  of  the  general  face, 
notwithstanding  his  denial  of  the  fact  itself.(/)  'Upon 
a  bill  filed  by  three,  on  behalf  of  themselves  and  all  other 
holders  of  scrip  on  the  Peruvian  loan,  it  was  held,  that 
having,  if  any,  a  several  demand  at  law  and  in  equity, 
they  could  not  file  one  bill  to  have  their  subscriptions 
returned.(g) 

A  plea  of  a  stated  account  is  a  good  bar  to  a  bill  for 
an  account,(A)  as  a  plea   that  the  defendant  hath  fully 
accounted  with  the  plaintiff  himself  is  a  good  plea  at  law 
^n  discharge  before  auditors.(z)      But  the  plea  in  equity 
^must  show,  that  the  account  "  was  in  writing,  and  like- 
owise  the  balance  in  writing,  or  at  least  set  forth  what  the 
^^balance  was  ;"(A:)  at  the  same  time,  "  there  is  no  abso- 
'      lute  necessity  that  the  account  should  be  signed(l)  by 
^;[j)the  parties  who  have  mutual  dealings,  to  make  it  a  sta- 
ted account,  as  acquiescence  in  it  without  objection  for 
^/^  length  of  time  will  render  it  a  stated  account."(/ )(2) 
If  error  or  fraud  are  charged,  they  must  be  denied  by 
the  plea,  as  well  as  by  way  of  answer ;  and,  if  neither 
error  nor  fraud  be  charged,  the  defendant  must,  by  the 

(/)  Saunders  v.  King,  6  Madd.  61.  S.  C.  cited  by  Sir  John  Leach 
from  a  MS.  note  in  Thring  v.  Edgar,  2  Sim.  &  Stu.  277.  S.  P. 
Yorke  v.  Fry,  Ibid.  65.  In  a  suit  for  an  account  of  partnership  Trans- 
actions, if  the  relief  prayed  applies  to  any  period  during  which  a  de- 
fendant disclaiming  any  beneficial  interest  was  a  partner,  his  disclaimer 
is  no  reason  why  he  should  not  be  continued  as  a  party  to  the  suit ;  a 
party  cannot  disclaim  his  liability.  Glassington  v.  Thwaites,  2  Russ. 
462. 

(g)  Jones  V.  Garcia  del  Rio,  1  Turner  &  Russ.  297. 

(h)  Load  Redesd.  Tr.  on  PI.  210.  (i)  Syst.  PL  130. 

(k)  Per  Lord  Hardwicke,  Burk  v.  Brown,  2  Atk.  399. 

(/)  Per  Lord  Hardwicke,  Willis  v.  Jernegan,  2  Atk.  252. 

(1)  Jessup  V.  Cook,  1  Halsted's  Rep.  436. 

(2)  Lamalere  v.  Caze,  Circuit  Ct.  jlpril  Sess.  1806.  2  P.  A. 
Browne's  Rep.  128,  n.  See  2  Conn.  Rep.  428.  2  Caine's  Rep.  297, 
298.     Heartt  v.  Corning,  3  Paige's  Cha.  Rep.  566. 


BETWEEN    PARTNERS.  100 

plea,  aver,  that  the  stated  account  is  just  and  true,  to  the 
best  of  his  knowledge  and  belief.(m)  As  the  delivery 
of  the  vouchers  to  the  plaintiff  is,  to  use  the  expres- 
sion of  Lord  Hardwicke,  an  affirmation,  at  least,  that 
the  account  between  the  parties  was  a  stated  one ;  al- 
though to  make  it  so,  it  is  not  absolutely  necessary  they 
should  be  delivered  up  when  the  account  is  settled  ;{7i) 
yet,  when  they  have  been  delivered  up,  that  fact  consti- 
tutes a  proper  averment  in  a  plea  of  this  nature.(o) 
*It  has  been  decided,  that  a  verbal  statement  of  [*101] 
an  account,  and  a  receipt  in  full  of  all  demands 
for  the  balance,  did  not  constitute  a  plea  in  bar  to  a  bill 
which  sought  to  open  the  accounts,  there  being  mistakes 
in  the  transaction.(/))  And  this  distinction  is  taken  in 
a  case  in  Freeman'' s  Reports.(g)  "  If  a  man  preferreth 
a  bill  generally  for  an  account,  an  account  stated  is  a 
good  plea ;  but  if,  in  his  bill,  he  setteth  forth  that  there 
was  an  account,  and  that  there  was  a  mistake,  and 
setteth  forth  the  particular  mistake,  there  an  account 
stated  is  no  good  plea."  A  pure  plea  of  a  stated  account 
would  meet  the  first  case  fully,  and  be  a  complete  an- 
swer to  it ;  but  such  plea  would  not  meet  the  second 
case,  as  it  would  leave  the  allegation  of  the  particular 
mistake  unanswered.(r)  The  same  volume  of  Freeman 
contains  a  short  note  of  another  case,(s)  in  which  it  is 
laid  down,  that  if  there  be  any  agreement  to  rectify 
mistakes,  an  account  stated  shall  not  conclude,  though 
it  be  under  hand  and  seal.  On  the  ground  of  fraud ,(/) 
a  stated  accouut  has  been  opened  after  a  considerable 
lapse  of  time;(?/)  but  the  court  is  not,  generally  speaking, 
inclined  to  unravel  an  old  account,  notwithstanding  it 


(m)  Lord  Redcsd.  Tr.  on  PI.  211. 

(n)  Willis  V.  Jernegen,  ante.     Wharton  v.  May,  5  Ves.  27. 

(o)  For.  Rom.  57.     Lord  Redesd.  Tr.  on  PI.  2n. 

{p)  Walker  v.  Consett,  Forest's  Rep.  167.  Cliandler  i'.  Dorset, 
Finch's  Rep.  431. 

(q)  Anon.  2  Freem.  62.  (r)  Beanies  on  PI.  in  Eq.  224. 

(s)  Proud.  V.  Coombes,  2  Freem.  183.  S.  C.  1  Ch.  Ca.  55.  Nels. 
Rep.  100.     3  Ch.  Rep.  10.  (t)  Wharton  v.  May,  5  Ves.  27. 

(u)  Roberts  v.  Cuffen,  2  Atk.  113.  Vernon  v.  Vawdry,  Ibid.  119. 
Beaumont  v.  Boultbee,  5  Ves.  485.    S.  C.  7  Ves.  599,  and  1 1  Ves.  358. 


101  EQUITABLE  REMEDIES 

may  have  been  settled  upon  an  erroneous  principle,(v) 
a  strong  ground  being  necessary  to  impeach  it.(w)    Nor 
will  the  court  open  a  settled  account,  where  it  has  been 
signed,  or  a  security  taken  on  the  footing  of  it,  unless 
for  fraud,  or  errors  distinctly  specified  in  the  bill,(a:)  and 
proved  as  specified.(t/)     The  reason  stated  for  the  ne- 
cessity of  charging  some  specific  error  is,  that  there 
may  be  cases  in  which  the  opinion  of  the  court  may  be 
clear  at  the  hearing  that  there  was  error,  and  yet,  if  the 
fact  were  distincly  put  in  issue,  the  court  might  be  satis- 
fied that  transactions  had  taken  place,  upon  which  it 
would  be  impossible  to  consider  it  error.     The 
[*102]  expression  of  *"  errors  excepted,"  will  not  pre- 
vent an  account  being  a  settled  account  ;{z)  and 
even  where  specific  errors  were  alleged  and  proved,  the 
court  has  refused,  after  an  acquiescence  of  eleven  years, 
to  open  the  account  entirely,  but  only  allowed  the  plain- 
tiff to  surcharge  and  falsify.(a)     In  a  case  before  Lord 
Hardwicke^  his  lordship  observed,  that  "  if  one  merchant 
send  an  account  current  to  another  in  a  different  country, 
on  which  a  balance  is  made  due  to  himself,  and  the  other 
keeps  it  by  about  two  years  without  objection,  the  rule 
of  this  court  and  of  merchants  is,  that  it  is  considered  as 
a  stated  account."(6)(l)     But,  in  a  more  modern  case, 
Sir  Joh?i  Leach  held,  that  the  naked  fact  of  the  delivery 
of  an  account,  without  evidence  of  contemporaneous  or 

(u)  Gray  v.  Minnethorpe,  3  Ves.  103. 

(w)  Chambers  v.  Goldwin,  5  Ves.  837. 

[x)  Dawson  v.  Dawson,  1  Alk.  1.  Taylor  v.  Haylin,  2  Bro.  C.  C. 
310.  S.  C.  1.  Cox  435.  Johnson  v.  Curtis,  3  Bro.  C.  C.  266.  Lewis 
V.  Morgan,  3  Anstr.  769. 

(y)  Drew  v.  Power,  1  Sch.  &  Lef.  182.  192.  Dunbar  v.  Len,  1 
Bro.  P.  C.  3.  Chambers  v.  Goldwin,  9  Ves.  265,  266.  Kinsman  v. 
Barker,   14  Ves.  579. 

(z)  Johnson  v.  Curtis,  3  Bro.  C.  C.  266. 

(a)  Brownell  v.  Brownell,  2  Bro.  C.  C.  62.  See  also  Twogood  v. 
Swanston,  6  Ves.  485.  Lord  Courteney  v.  Godschall,  9  Ves.  473.  Ver- 
non V.  Vawdry,  2  Atk.  119. 

{b)  Tickel  v.  Short,  2  Ves.  sen.  239.  See  1  Ball  &  Beat,  428,  429. 
Sherman  v.  Sherman,  2  Vern.  276.     Willis  v.  Jernegan,  2  Atk.  252.  . 


(1)  See  2  Caines'  Rep.  298. 


BETWEEN  PARTNERS.  102 

subsequent  conduct,   afforded   no  sufficient   legal   pre- 
sumption that  the  account  was  settled.(c) 

The  statute  for  limitation  of  actions(c?)  is  likewise, 
where  the  fact  admits  of  it,  a  good  plea  in  bar  to  the 
relief  sought  by  a  bill  in  equity  for  an  account  ;(e)(l) 
because,  where  the  account  has  been  closed  above  six 
years  before  the  bill  filed,  without  any  demand  upon  it, 
the  statute,  it  seems,  notwithstanding  the  exception,(y) 
apphes,  even  in  the  case  of  merchants'  accounts.(^)  (2) 
Therefore,  where  a  bill  was  filed  against  the  represen- 
tative of  a  surviving  partner,  praying  an  account  of 
transactions  that  had  taken  place  upwards  of  six  years 
anterior  to  the  filing  of  the  bill,  it  was  determined  that  a 
plea  of  the  statute  of  limitations  was  an  effectual  bar  to 
the  relief  prayed.(A)  (3)  But  although,  where  the 
*account  is  settled  or  stated  the  statute  is  a  bar ;  [*103] 
yet  if  the  account  be  open  or  current^  it  falls  within 
the  exception  of  the  statute,  and  consequently  does  not 
furnish  matter  for  a  plea.(i)  (4) 

(c)  Irvine  v.  Young,  1  Simons  &;  Stu.  333.      {d)  21  Jac.  1  c.  16. 

\e)  Lord  Redesd.  Tr.  on  PI.  218.  Wych.  v.  East  India  Company, 
3  P.  Wms.  309.     Lacon  v.  Lacon,  2  Atk.  395. 

(/)  The  enactment  of  the  3d  section  is,  that  "  all  actions  of  account, 
and  upon  the  case,  other  than  such  accounts  as  concern  the  trade  of 
merchandize  between  merchant  and  merchant,  their  factors  and  servants, 
shall  be  commenced  and  sued  within  the  time  and  limitation  hereafter 
expressed ;  viz.  the  said  attions  upon  the  case,  and  the  said  actions  of 
account,  &;c.,  within  six  years  next  after  the  cause  of  such  actions  or 
suits,  and  not  after." 

{g)  Welford  v.  Liddel,  2  Ves.  sen.  400.  Crawfurd  v.  Liddel,  cited 
6  Ves.  582.  Bridges  v.  Mitchell,  Gilb.  Eq.  Rep.  224.  Barber  v. 
Barber,  18  Ves.  286.  See  also  argument  in  Duff  ».  East  India  Com- 
pany, 15  Ves.  205. 

Ui)  Barber  v.  Barber,  supra.  See  also  Foster  v.  Hodgson,  19  Ves.  180. 

{i)  Scudamore  v.  White,  1  Vern.  456.     Sherman  v.  Sherman,  2 

(1)  Kane  v.  Bloodgood,  7  Johns.  Cha.  Rep.  90.  Landsdale  v. 
Brashear,  3  Monroe's  Rep.  322.  Farnham  v.  Brooks,  9  Pick.  Rep. 
212. 

(2)  Ramchander  v.  Hammond,  2  Johns.  Rep.  200.  Coster  v.  3Iur- 
ray,  5  Johns.  Cha.  Rep.  522.  Contra,  Mandeville  v.  Jameson,  5 
Cranch,  15.     Davis  v.  Smith,  4  Greenl.  Rep.  339. 

(3)  See  Union  Bank  v.  Knapp,  3  Pick.  Rep.  112. 

(4)  Bass  V.  Bass,  6  Pick.  Rep.  362.  Stiles  v.  Donaldson,  2  Dall. 
Rep.  264.  2  Yeates,  105. 


103  EQ,UITABLE    REMEDIES 

As  a  covenant  or  agreement  to  refer  partnership  dis- 
putes to  arbitration  cannot  be  made  the  subject  of  a 
bill  for  a  specific  performance,(A:)  so  it  cannot  be  pleaded 
in  bar  to  a  suit  by  one  partner  against  another  arising 
out  of  such  disputes.(/)  An  agreement  of  that  descrip- 
tion has  as  little  operation  in  equity  as  we  have  shown(m) 
it  to  possess  at  law.  Thus,(w)  where  one  partner  filed 
a  bill  against  another  for  discovery  and  relief,  and  the 
defendant  pleaded  an  agreement,  that  in  case  any  dif- 
ference should  arise  between  him  and  the  plaintiff,  it 
was  to  be  decided  by  arbitrators,  Lord  Hardwicke  dis- 
allowed the  plea;  for,  as  it  was  a  bill  to  discover  and  be 
relieved  against  frauds,  the  arbitrators  could  not  examine 
upon  oath,  which,  by  the  agreement,  they  should  have 
had  the  power  of  doing.(o)  This  case,  indeed,  was 
overruled  by  Lord  Kenyan .,  who,  when  Master  of  the 
Rolls,  allowed  such  a  plea,(p)  observing  that  the  legis- 
lature had  countenanced  agreements  of  reference  by  the 
act  passed  in  the  reign  of  King  William  the  Third,(9) 
which  was  passed  for  facilitating  the  execution  of  them, 
and  that  before  a  court  of  equity  could  be  called  upon 
to  interpose,  an  appeal  must  be  made  to  the  domestic 
forum  prescribed  by  the  articles.  However,  the  decision 
of  Lord  Kenyon  has  been  frequently  impeached,  and 
Lord  Hardwicke's  doctrine  has  obtained  the  unqualified 
sanction  and  support  of  succeeding  judges.     In  appro- 

Vern.  276.  Welford  v.  Liddel,  2  Ves.  sen.  400.  Webber  v.  Tivill, 
2  Wms.  Saund.  124,  127,  n.  (6).  In  the  Harcourt  MS.  Tables  is  the 
following  note  : — "  Currency  of  accounts  prevents  the  statute  of  limi- 
tations. Ormston  v.  Hamilton,  20th  March,  1711."  See  also  Beam, 
on  PI.  inEq.  167. 

{k)  Price  v.  Williams,  cited  6  Ves.  818.  Milnes  v.  Gery,  14  Ves. 
400.     Gourlay  v.  Duke  of  Somerset,  19  Ves.  431.     Rovve  v.  Wood, 

1  Jacob  &  Walk.  346. 

{I)    Lord  Redesd.  Tr.  on  PI.  214.  (m)  See  ante,  p.  89. 

(n)  Wellington  v.  Mackintosh,  2  Atk.  570. 

(o)  With  respect  to  this  point,  the  opinion  of  Lord  Hardwicke  must 
be  misreported,  as  the  parties  could  not  give  the  arbitrators  a  power  to 
examine  on  oath.  See  dictum  of  Lord  Kenyon,  in  Halfhide  v.  Penning, 

2  Bro.  C.  C.  336.     Street  v.  Rigby,  6  Ves.  820. 
(/))  Halfhide  v.  Penning,  supra. 

(q)   9  <fe  10  W.  3.  c.  15. 


BETWEEN    PARTNERS.  104 

bation  of  it,  there  are  the  concurrent  opinions  of 
Lord  *Thurlow,(r)  Lord  Rosslyn,(s)  Lord  El-  [*104] 
don,(t)  and  even  of  Lord  Kenyon  himself.(z^)(l) 
As  a  general  proposition,  therefore,  it  is  true,  that  an 
agreement  to  refer  disputes  to  arbitration  will  not  com- 
pel the  parties  even  to  submit  to  arbitration  before  they 
apply  to  a  court  of  equity  for  relief,  although,  in  some 
cases,  where  the  agreement  itself  furnishes  the  means  of 
redress  for  the  particular  subject  of  complaint,  it  may 
be  used  by  the  defendant  as  an  objection  to  the  sum- 
mary interference  of  the  court  upon  the  subject  matter 
of  such  agreement.  Thus,  where  the  matter  of  dispute 
was  the  management  of  the  Opera  House,  and  the  ad- 
justment of  its  accounts,  (which  was  judged  peculiarly 
a  subject  for  arbitration,)  and  where  it  was  expressly 
provided,  that  the  matter  should  be  referred,  the  court 
recognised  the  principle,  that  an  agreement  to  refer  dis- 
putes to  arbitrators  was,  generally  speaking,  no  objec- 
tion to  a  suit  in  equity ;  yet  it  refused,  in  this  particular 
instance,  to  interfere  in  the  arrangement  of  the  matter, 

(r)  Price  v.  Williams,  6  Ves.  818. 

(s)  Michell  v.  Harris,  4  Bro.  C.  C.  311.  fe.  C.  2  Ves.  jun.  129.  See 
also  Tattersall  v.  Groote,  2  Bos.  &  Pul.  131. 

(t)  Waters  v.  Taylor,  15  Ves.  10.  Street  v.  Rigby,  6  Ves.  815. 
Nicholls  V.  Chalie,  14  Ves.  270. 

(u)  Thompson  v.  Charnock,  8  T.  R.  139. 


(1)  On  a  bill  filed  by  surviving  partners  against  the  executor  of  a 
deceased  partner,  to  compel  him  to  account  ibr,  and  pay  to  them  the 
amount  of  the  partnership  goods  sent  by  the  deceased  partner  out  of  tlie 
State,  it  appeared  that  partnership  goods  to  a  certain  amount  was  sent, 
with  other  goods,  to  the  State  of  Georgia,  and  that  the  disputes  be- 
tween the  surviving  partners  and  the  executor,  were  referred  to  arbitra- 
tors, who  awarded,  that  there  being  no  possible  means  of  identifying 
the  goods,  or  of  recovering  the  posession  thereof,  by  any  process  of 
this  State,  {Maryland,}  the  surviving  partners  could  only  be  considered 
as  creditors  to  the  amount  thereof,  and  entitled  to  payment  in  a  regular 
course  of  administration  according  to  the  laws  of  Georgia.  The  ques- 
tions raised  were,  whether  the  surviving  partners  were  entitled  to  their 
goods,  or  their  value  ;  and,  whether  they  were  precluded  by  the  opinion 
of  the  arbitrators,  and  the  subsequent  proceedings  under  their  award, 
the  estate  being  overpaid  under  the  administration  in  Georgia.  Bill 
dismissed.     J.  ^  R.  Yates  v.  Petty' s  Ex.  1  Harr.  &l  Johns.  Rep.  58. 


104  EQUITABLE  REMEDIES 

till  a  reference  to  arbitration  had  been  tried.(2;)  So 
where,  in  a  firm  consisting  of  several  hundred  members, 
a  committee  of  twelve  was  appointed  to  superintend  the 
conduct  of  the  acting  managers,  and,  if  occasion  re- 
quired, to  call  a  general  meeting  of  the  members  to  con- 
sider the  state  of  their  affairs;  half  of  the  committee- 
men filed  a  bill  against  the  acting  managers  and  the 
other  half  of  the  committee,  praying  an  account  and 
dissolution  of  the  partnership,  on  the  grounds  of  gross 
mismanagement  and  neglect  on  the  part  of  the  man- 
agers ;  the  court  would  not  interfere  until  the  remedy- 
provided  by  the  articles  had  been  tried.(2^;)  Nor,  in  the 
case  of  an  extensive  partnership,  a  brewery  for  instance, 
will  a  court  of  equity  grant  an  account  and  dissolve  the 
partnership,  until  the  parties  have  resorted  to  the  pro- 
ceedings for  terminating  disputes,  for  which  provision  is 
made  in  the  articles  of  partnership  ;(.r)  unless,  indeed, 
the  means  of  redress  chalked  out  by  the  articles  are  in- 
efrectual.(i/)  Where  the  power  of  adjusting  the  affairs 

of  the  company  is,  by  the  deed  of  settlement, 
[  *105  ]  *vested  in  general  meetings  of  the  proprietors 

to  be  convened  at  the  discretion  of  the  mana- 
gers, the  court,  on  the  ground  of  its  being  casus  omissus, 
will  compel  the  managers  to  appoint  meetings.(z) 

Where  an  account  is  to  be  taken,  each  partner  is  en- 
titled to  be  allowed  against  the  other  every  thing  he  has 
advanced  or  brought  in  as  a  partnership  transaction, 
and  to  charge  his  co-partner  in  that  account  with  what 
he  has  not  brought  in,  and  with  what  he  has  taken  out, 
beyond  the  proportion  to  which  he  was  entitled ;  and 
nothing  is  to  be  considered  as  his  share  but  his  propor- 
tion of  the  residue  in  the  balance  of  the  account.(a)  (1) 
Partners,  however,  may,  as  amongst  themselves,  stipu- 

{v)  Waters  v.  Taylor,  15  Ves.  18. 

[tv)  Carlen  v.  Drary,  1  Ves.  <fe  Bea.  154.  {x)  Id.  Ibid. 

ly)  Id.  Ibid.     See  also  Gourlay  v.  Duke  of  Somerset,  19  Ves.  431. 

(z)  Per  Lord  Eldon,  Carlen  v.  Drury,  ante. 

\a)  West  V.  Skip,  1  Ves.  Sen.  242,  S.  C.  2  Swanst.  586. 


(1)  See  Pierce  v.  Jackson,  6  Mass.  Rep.  243. 


BETWEEN  PARTNERS.  105 

late  that  the  accounts  shall  be  adjusted  in  a  particular 
manner ;  and,  in  that  case,  although  the  mode  prescribed 
interfere  with  the  general  rules  laid  down  by  the  court 
for  the  taking  of  such  accounts,  the  court  will  abide  by 
and  settle  the  account  on  the  footing  of  such  special 
agreement.(l)  But  where  partnership  articles  contain 
special  clauses  for  taking  the  accounts,  on  which  the 
partners  have  not  acted,  the  articles  are  read  in  equity 
as  if  those  clauses  were  expunged,  and  the  accounts  will 
be  taken  in  the  usual  way.(6)  It  has  been  decided  by 
the  Court  of  Exchequer,(c)  that  if  two  persons  enter  into 
the  wine  trade,  intending  originally  that  both  should 
reside  upon  the  premises,  and  one  of  them  afterwards 
removes  to  a  separate  dwelling,  leaving  the  other  in  the 
possession  of  the  premises,  and  in  the  management  of 
the  whole  business,  the  latter,  on  taking  the  account,  is 
not  entitled  to  be  reimbursed  usual  and  necessary  ex- 
penses he  may  have  incurred  in  treating  the  customers, 
where  balances  have  been  struck  yearly,  and  no  demand 
in  respect  of  them  has  been  made.(2)  To  justify  such 
an  allowance  to  the  acting  partner,  it  ought  either  to  be 
sanctioned  by  an  universal  custom  in  the  trade,  or  should 

(b)  Per  Lord  Eldon,  Jackson  v.  Sedgwick,  1  Swanst.  469 ;  and 
see  Geddes  v.  Wallace,  2  Bligh.  270.     Petty  v.  Janeson,  6  Madd.  146. 

(c)  Tliornton  v.  Proctor,  1  Anstr.  94. 


(1)  In  settling  the  accounts  of  a  mercantile  concern,  in  a  controversy 
between  the  partners  only,  it  is  sufficient  to  examine  and  state  the 
hooks  of  the  co-partnership,  without  requiring  vouchers  in  support  of 
each  specific  item.  Fletcher  v.  Pollard,  2  Hen.  &  Munf.  544.  Brick- 
house  V.  Hunter  et  al.  4  Hen.  &  Munf.  363.  The  entries  are  to  be  con- 
sidered as  prima  facie  correct,  but  either  partner  may  show  mistakes 
or  errons.  Heartt  v.  Corning,  3  Paige's  Cha.  Rep.  566.  The  ordi- 
nary presumption  is,  that  all  the  partners  have  access  to  the  partnership 
books,  and  know  the  entries  therein ;  but  this  is  a  mere  presumption 
from  the  ordinary  course  of  business,  and  may  be  repelled  by  any  cir- 
cumstances which  lead  to  a  contrary  presumption.  U.  S.  Bank  v. 
Binney,  5  Mason's  Rep.  176.  Withers  v.  Withers,  8  Peters,  S.  C. 
Rep.  359.  Where,  for  the  purpose  of  taking  an  account  the  Court 
order  parties  to  produce  books  and  papers  before  the  commissioner,  he 
will  be  directed  to  disregard  such  parts  of  them  as  relate  to  the  private 
affairs  of  either  party.     Ccdlovjay  et  al.  v.  Tate,  1  Hen.  &  Munf.  9. 

(2)  Withers  v.  Withers,  8  Peters,  S.  C.  Rep.  355. 

19 


105  EQ.UITABLE    REMEDIES 

be  made  matter  of  express  stipulation  between  the  par- 
ties themselves,  by  the  articles  of  co-partnership,  if,  in 
the  first  instance,  it  be  intended  that  the  active  manage- 
ment should  devolve  upon  a  single  partner ;  or,  if  that 

be  not  so,  and  circumstances  effect  a  change  in 
[*106]  their   original   intention,   by  some   ^subsequent 

agreement.  But,  in  the  taking  of  an  account, 
interest  will  be  charged  upon  money  borrowed  by  one 
partner  of  the  firm  upon  his  promissory  note,  though  the 
borrower  had  a  greater  sum  in  the  joint  stock  than  the 
amount  of  the  loan ;  for  the  stock  is  only  to  be  employ- 
ed in  augmentation  of  the  trade  for  the  mutual  benefit 
of  all,  and  not  for  the  private  advantage  of  individual 
partners.(c?)  (1)  In  general,  a  partner,  who,  in  his 
answer  to  a  bill  filed  for  an  account  of  partnership 
transactions,  insists  that  the  balance  of  the  account  is 
in  his  favour,  is  not  obliged  to  bring  into  court  what  is 
in  his  hands,  unless  the  other  partners  do  the  same ; 
but,  if  he  have  received  money  under  circumstances 
from  which  it  can  be  inferred  that  he  had  agreed  not  to 
receive  it,  he  will  then  be  ordered  to  bring  it  into  court, 
however  large  the  balance  due  to  him  may  happen  to 
be,  because  his  conduct  is  not  compatible  with  good 
faith.  Thus,  where  the  defendant,  a  member  of  a  firm 
in  the  country,  which  it  was  the  intention  of  the  parties 
to  dissolve,  stated  that  he  must  go  to  London  to  consult 
a  friend  on  the  subject,  before  he  could  accede  to  the 
terms  of  the  dissolution,  but  on  his  journey  went  to 
several  debtors  of  the  firm,  and  received  from  them 
partnership  debts,  he  was  ordered  to  pay  the  money 
into  court.(c) 

{d)  Beecher  v.  Guilburn,  Moseley.  3. 

(e)  Foster  v.  Donald,  1  Jacob  &  Walk.  252. 


(1)  See  Stoughton  v.  Lynch,  1  Johns.  Cha.  Rep.  467.  2  Johns. 
Cha.  Rep.  209.  Simpson  v.  Peltz,  1  McCord's  Cha.  Rep.  220.  But 
where  the  articles  of  co-partnership  permit  the  partners  to  withdraw 
certain  sums  annually,  without  containing  any  stipulation  as  to  interest 
thereon,  interest  will  not  be  allowed.  Miller  v.  Lord,  11  Pick.  Rep. 
11.  See  the  doctrine  on  the  subject  of  interest  on  partnership  accounts 
as  stated  by  Judge  Story  in  Dexter  v.  Arnold,  3  Mason's  Rep.  284. 


BETWEEN  PARTNERS.  106 

Where  one  partner  discharges  a  partnership  debt  out 
of  his  own  individual  funds,  equity  will  enforce  a  contri- 
bution.(/)(l)     Formerly,  contribution  was  always  ob- 
tained through  the  medium  of  a  bill  in  equity,  although, 
the  right  to  the  satisfaction  being  posit^^^e,  actions  at 
law  between  partners  for  a  contribution  have  latterly 
become  frequent.(^)  (2)     This  concurrent  exercise  of 
jurisdiction  does  not,  however,  oust  courts  of  equity  of 
the  power  they  originally  possessed  of  entertaining  cog- 
nizance of  such  subjects,  since  the  fact,  that  courts  of 
law  have  assumed  jurisdiction,  can  afford  no  reason  why 
the  equitable  authority  should  not  be  maintained.     In 
some  cases,  as  if  there  were  ten  persons  severally  bound 
to  contribute,  the  equitable  relief  would  be  more  readily 
obtained,  and  at  a  less  expense  than  any  legal  redress ; 
for  in  a  court  of  equity  all  the  persons  from  whom  con- 
tribution is  claimed  might  be  comprehended  in  a 
single  suit;  *  whereas,  at  law,  a  separate  action  [*107] 
must  be  brought  against  each  for  his  propor- 
tion.(A)     And  if  one  of  the  parties  jointly  bound  be 
insolvent,  contribution  for  his  share  cannot  at  law  be 
recovered  against  the  others,  but  it  is  the  subject  matter 
of  a  proceeding  in  equity  only ;  for  the  legal  remedy  is 
founded  upon  the  principle,  that  one  pays  that  to  which 
all  are  liable.(i) 

A  court  of  equity  will  hkewise  interfere  to  protect  a 
party  upon  whom  a  fraud  has  been  practised;  and 
where  a  premium  has  been  fraudulently  obtained  from 

(/)  Wright  V.  Hunter,  5  Ves.  792.  Abbott  v.  Smith,  2  Blackst- 
947.     Deering  v.  Lord  Winchelsea,  2  Bos.  &  Pul.  270. 

(ff)  Wright  V.  Hunter,  supra.  S.  C.  1  East,  20.  But  see  ante, 
p.  79. 

{h)  Wright  V.  Hunter,  ante.     S.  C.  1  East,  20. 

(i)  Per  Holroyd,  J.,  in  Collins  v.  Prosser,  1  B.  &  C.  688.  See  also 
Cowell  V.  Edwards,  2  Bos.  &  Pul.  251.  Ex  parte  Hunter,  Buck, 
552.  Ex  parte  Smith,  Ibid.  492.  Madox  v.  Jackson,  3  Atk.  406. 
Cockburn  v.  Thompson,  16  Ves.  326.  Sainstry  v.  Grammer,  2  Eq. 
Ca.  Abr.  165.  pi.  6. 


(1)  See  Sells  v.  HubbeWs  Mm.  2  Johns.  Cha.  Rep.  397. 

(2)  .See  Peck  v.  Ellis,  2  Johns.  Cha.  Rep.  136. 


107  EQ.UITABLE  REMEDIES 

a  person  as  a  consideration  for  entering  into  partner- 
ship, it  will  order  the  premium  to  be  returned,  treating 
the  articles  of  partnership  as  a  nullity,  in  consequence 
of  the  fraud.(^)  Thus,  where  A,  an  attorney,  prevailed 
on  B  to  become  a  partner  with  him,  and  B  paid  a  pre- 
mium :  but,  before  fourteen  months  had  expired,  A  sued 
out  a  commission  of  bankruptcy  against  B,  and  thus 
dissolved  the  partnership :  this  was  held  to  be  a  fraud 
upon  B,  and  A  was  decreed  to  return  part  of  the  pre- 
mium which  had  been  paid,  and  to  deliver  up  a  bond 
given  to  secure  the  remainder ;  but  an  allowance  was 
directed  to  be  made  in  respect  of  the  time  the  partner- 
ship subsisted. (/)  So  where,  on  the  retirement  of  one 
of  two  partners  from  trade,  it  was  left  to  arbitrators  to 
determine,  amongst  other  things,  what  was  to  be  paid 
to  the  retiring  partner  for  the  goodwill  of  the  trade ; 
and  they,  on  an  understanding  that  the  retiring  partner 
would  not  set  up  the  trade  in  the  same  street,  or  its 
vicinity,  awarded  a  certain  sum  as  the  share  of  the  re- 
tiring partner  for  the  goodwill,  which  was  paid ;  but  no 
restraint  being  expressly  placed  upon  him  in  that  respect 
by  the  award,  he  afterwards  set  up  the  trade,  in  the 
same  neighbourhood ;  the  Court  of  Chancery,  on  parol 
evidence  of  the  understanding  on  which  the  award  was 
made,  enjoined  him,  on  the. ground  of  fraud,  from  car- 
rying on  the  trade  in  that  neighbourhood. (m)  (1)     And 

{k)  Per  Lord  Mdon,  Tattersall  v.  Groote,  2  Bos.  &  Pul.  131. 

(/)  Hamil  v.  Stokes,  1  Daniell,  20.  S,  C.  4  Price,  166.  And  see 
Ackhurst  v.  Jackson,  1  Swanst.  89.     Ex  parte  Broome,  1  Rose,  71. 

(m)  Harrison  v.  Gardner,  2  Madd.  198.  See  also  Williams  v. 
Williams,  2  Swanst.  253.     Kennedy  v.  Lee,  3  Meriv.  441. 


(1)  Where  an  indenture  of  partnership  for  a  term  of  years  contained 
a  proviso,  "  that  either  party  might,  if  he  were  desirous  of  quitting 
the  trade,  determine  the  partnership,  by  giving  six  months  notice,  and 
that  the  party  receiving  such  notice  should,  after  the  end  of  said  six 
months  continue  the  business  on  his  own  account,  and  have  the  benefit 
of  the  remaining  part  of  the  lease  of  the  premises,"  it  was  held,  that 
one  partner  could  not,  by  giving  the  notice,  dissolve  the  partnership 
and  then  set  up  the  trade  elsewhere,  but  must  either  continue  the  part- 
nership or  entirely  give  up  the  trade.  Cooper  v.  Watlington,  2  Chit. 
Rep.  451.     The  marginal  abstract  of  the  case  is  totally  incorrect. 


BETWEEN  PARTNERS.  lOS 

where  the  plaintiffs  and  the  defendants,  being 
*carriers,  agreed  to  horse  certain  portions  of  [  *108  ] 
the  road,  but  that  no  partnership  should  exist 
between  them,  but  each  to  be  considered  as  carrying  on 
within  their  limits  an  exclusive  business ;  and  one  agreed 
with  the  mint,  for  himself  and  the  other  parties,  to  carry 
coin  to  places  on  the  line  of  road,  and  afterwards  made 
another  agreement  with  the  mint  to  carry  to  other 
places  not  on  the  road ;  it  was  held,  that  it  appearing 
that  the  officers  of  the  mint  dealt  with  him  partly  on  the 
policy  of  the  old  agreement,  and  that  he  did  not  apprize 
them  he  was  dealing  exclusively  on  his  own  account,  the 
other  parties  were  entitled  to  share  in  the  profits.(/i) 
Another  head  of  fraud,  which  a  court  of  equity  will  not 
sanction  or  permit,  is  that  of  one  partner  unduly  pledg- 
ing the  partnership  firm  in  discharge  of  his  own  indivi- 
dual debt,  or  in  a  transaction  wholly  unconnected  with 
the  common  interest  of  all  the  partners.(o)  Thus,  where 
one  partner  indebted  to  the  partnership,  and  unable  to 
pay  his  separate  bill  holden  by  his  bankers,  substituted 
by  negotiation  with  them  a  partnership  security,  with- 
out the  knowledge  or  consent  of  his  partners,  and  of 
which  the  bankers  were  also  aware,  an  injunction  to  re- 
strain the  bankers  from  negotiating  it  was  granted.(/)) 
So,  if  one  partner  make  the  partnership  liable  for  his 
separate  debt,  and  his  executrix  confess  judgment,  a 
court  of  equity  will  restrain  proceedings  under  the  judg- 
ment.(9')  It  will  also  restrain  one  partner  from  using 
the  name  of  both  in  an  improper  manner,  as  from  ac- 
cepting or  negotiating  bills  of  exchange  for  or  in  the 
name  of  the  partnership,  unless  the  same  be  accepted 
or  negotiated  for  the  purpose  of  the  partnership.(r) 
And  in  a  case(s)  where  a  partner,  under  parol  agreement 
for  a   partnership,   filed  a  bill  against  his  co-partner, 

(n)  Russell  v,  Austwick,  1  Sim.  52. 

(o)  Ex  parte  Agace,  2  Cox,  316. 

Ip)  Hood  V.  Aston,  1  Russel,  412. 

(y)  Anon.  Ca.  in  Ch.  58.     S.  C.  16  Vin.  Abr.  242. 

(r)  Williams  v.  Bingley,  2  Vern.  278.  n. 

(s)  Master  v.  Kirton,  3  Ves.  74. 


108  EQUITABLE  REMEDIES 

charging  him  with  misconduct  and  praying  a  dissolution, 
account,  and  injunction  against  executing  securities  in 
the  name  of  the  firm ;  the  defendant  demurred,  upon  the 
ground,  that  as  the  partnership  existed  only  by  the  fact 
of  the  partners'  acting  together,  the  prayer  that  the 
court  would  do  what  they  had  a  right  to  do  themselves 
was  nugatory;  but  the  court  overruled  the  demurrer, 
because  of  the  mischief  which  the  defendant  might  effect 

by  using  the  partnership  name,  and  receiving  the 
[  *109  ]  partnership  debts,  without  accounting*  for  them. 

But  to  entitle  a  partner  under  such  circum- 
stances to  relief,  by  an  interposition  of  the  peculiar  pre- 
ventive process  of  injunction,  he  must  disclose  a  case 
which  completely  exculpates  him  from  all  imputation ; 
for  if  it  appear  that  he  has  been  guilty  of  any  breach  of 
good  faith,  a  court  of  equity,  if  it  do  not  refuse  to  in- 
terfere, will  at  least  hesitate  before  it  interposes  in  a 
summary  manner.  Thus,  where  on  a  bill  filed  by  one 
partner  against  his  co -partner,  imputing  acts  of  miscon- 
duct, and  praying  a  dissolution,  and  an  injunction  against 
receiving  debts,  or  drawing,  or  accepting  negotiable  se- 
curities, the  charges  of  misconduct  being  denied,  and  it 
being  in  consequence  doubtful  whether  the  partnership 
could  be  dissolved,  the  Court  of  Exchequer  refused  an 
injunction  before  answer,  and  in  doing  so,  the  court  was, 
in  a  great  measure,  governed  by  the  fact  that  the  plain- 
tiff had  taken  away  the  partnership  books,  an  act  which 
deprived  him  of  any  claim  to  its  favour.(/)  And  it  has 
been  decided,  that  a  court  of  equity  will  not,  on  the 
application  of  the  executor  of  a  deceased  partner,  re- 
strain the  surviving  partners  from  using  the  name  of 
the  deceased  in  the  firm  of  their  trade,  because,  by  con- 
tinuing his  name  in  the  partnership  firm,  no  liability  can 
be  entailed  upon  his  estate ;  and  although  it  may  be  a 
fraud  upon  the  public,  yet  that  circumstance  will  not 
entitle  the  executor  to  an  injunction.(z/)  Where  a  party 
has  paid  a  deposit  on  a  scheme  which  turns  out  to  be 

{t)  Littlewood  v.  Caldwell,  1 1  Price,  97. 
(u)  Webster  v.  Webster,  3  Swanst.  490.  n. 


BETWEEN  PARTNERS.  109 

a  mere  bubble,  he  may  sustain  a  bill  in  equity  to  re- 
cover it  back.(v) 

The  Court  of  Chancery  will  also  entertain  a  bill  for 
the  specific  performance  of  an  agreement  for  a  partner- 
ship. In  a  case  which  came  before  Lord  Hardwicke,(w) 
,  his  lordship  is  represented  to  have  said,  that  if  two  part- 
ners enter  into  an  agreement  to  carry  on  a  trade  to- 
gether, and  it  be  specified  in  the  agreement  that  articles 
shall  be  drawn  up  pursuant  to  it,  and  before  they  are 
prepared  the  agreement  is  abandoned  by  one  of  the 
partners,  upon  a  bill  brought  by  the  other  for  a  specific 
performance,  it  ought  to  be  decreed,  notwithstanding 
the  agreement  was  in  relation  to  a  chattel  in- 
terest.(ar)  However,  to  entitle  the  ^complainant  [  *110  ] 
in  such  a  case  to  a  specific  performance,  it 
seems  generally  to  be  essential  that  the  partnership  con- 
tract should  be  of  some  definite  duration ;  for,  if  it  be  in 
the  power  of  the  defendant  to  render  the  decree  abor- 
tive by  an  immediate  dissolution  of  the  partnership,  the 
court  will  not  interfere.  For  instance,  if  three  persons 
engage  in  partnership  for  seven  years,  with  a  covenant, 
that  if  either  of  them,  after  the  expiration  of  that  term, 
continue  to  carry  on  the  trade,  either  alone,  or  in  part- 
nership with  any  other  person,  until  one  or  more  of  the 
parties  shall  have  a  legitimate  or  illegitimate  son,  who  at- 
tains the  age  of  sixteen,  and  whom  the  father,  by  writing 
or  by  will,  desires  to  have  introduced  into  the  business, 
the  party  continuing  the  trade  shall  take  such  son  ap- 
prentice for  five  years,  and,  when  he  attains  twenty-one, 
shall  admit  him  as  a  partner,  but  not  until  twenty  years 
after  the  date  of  the  agreement ;  a  court  of  equity,  it 
has  been  determined,  will  not  compel  a  performance  of 
such  agreement  upon  a  bill  filed  by  an  illegitimate  child 
to  be  admitted  an  apprentice,  in  pursuance  of  an  ap- 
pointment by  his  father ;  because,  were  a  specific  per- 
formance of  the   agreement   decreed,   the   partnership 

(v)  Green  v.  Barrett,  I  Sim.  45;  and  see  Colt  r.  WoUaston,  2  P. 
Wms.  154. 

{w)  Buxton  V.  Lister,  3  Atk.  383. 
(x)  See  also  Anon.  2  Ves.  sen.  629. 


110  EQUITABLE  REMEDIES 

would  be  dissoluble  instanter  at  the  will  of  either  par- 
ty.{y)  As  a  general  proposition,  however,  this  distinc- 
tion between  the  definite  and  indefinite  limitation,  in 
point  of  endurance,  of  a  partnership  contract,  must  be 
received,  it  is  presumed,  not  without  qualification.  In 
many  such  cases,  though  the  partnership  could  be  imme- 
diately dissolved,  the  performance  of  the  agreement 
(like  the  execution  of  a  lease  after  the  expiration  of  the 
term),(z)  might  be  important,  as  investing  the  party 
with  the  legal  rights  for  which  he  contracted.(l)  Where 
the  specific  performance  of  such  an  agreement  is  de- 
creed, the  court  will  not  direct  an  account  of  the  profits 
of  the  trade  from  the  time  the  party  ought  to  have  beeii 
admitted,  for  that  would,  in  effect,  be  awarding  damages 

for  not  admitting  him  earlier  ;  and  whatever  he 
[*lll]was   entiled   to   in   that  respect  the   *plaintiflr 

might  have  recovered,  if  he  had  availed  himself 
of  his  legal  remedy.(a) 

Courts  of  equity  will  likewise  interfere  where  a  breach 
of  any  of  the  covenants  contained  in  the  articles  of 
partnership  has  been  committed,  if  the  breach  be  so  im- 
portant in  its  consequences  as  to  authorise  the  party 
complaining  to  call  for  a  dissolution  of  the  partnership. 

{y)  Hercy  v.  Birch,  9  Ves.  357.  In  the  late  cases  of  Vansandau  v. 
Moore,  and  Kinder  v.  Taylor,  Lord  Eldon  repeatedly  stated  the  set- 
tled doctrine  of  the  court  to  be,  that  a  specific  performance  of  a  con- 
tract for  a  partnership  would  be  decreed,  provided  the  partnership  were 
to  continue  for  a  certain  time,  but  that  the  court  would  not  assist  in  ex- 
ecuting the  contract,  if  the  partnership  could  be  dissolved  at  a  moment's 
notice. 

(z)  Nesbit  v.  Meyer,  1  Swanst.  226,  See  Downham  v.  Mathews,, 
cited  in  Doddington  v.  Hallett,  1  Ves.  sen.  497. 

{a)  Anon.  Ves.  sen.  629. 


(1)  Therefore,  an  agreement  to  build  a  Tavern  in  partnership,  at  the 
joint  expense  and  risk,  and  for  the  joint  benefit,  of  the  contractintr 
parties,  to  be  held  by  them  in  fee  simple,  will  be  decreed  to  be  speci- 
fically performed,  at  the  instance  of  the  partner  who  furnished  the 
ground,  and  had  fully  performed  the  contract  on  his  part;  not- 
withstanding many  of  the  partners  were  unwilling  to  carry  it  into 
effect,  because,  in  their  opinion,  a  change  of  circumstances  had  ren- 
dered the  scheme  unprofitable.  Birchet  ct  al.  v.  Boiling,  5  Munf. 
442. 


BETWEEN  PARTNERS.  Ill 

One  case  of  constant  occurrence,  falling  under  this  head 
of  equitable  relief,  is  that  of  a  partner  raising  money 
for  his  private  use  on  the  credit  of  the  partnership  firm; 
in  a  case  so  circumstanced,  the  court  interposes,  because 
there  is  a  ground  for  dissolving  the  partnership ;  but 
then  the  impending  danger  must  be  such,  there  must  be 
that  abuse  of  good  faith  between  the  members  of  the 
partnership,  that  the  court  will  try  the  question,  whether 
the  partnership  should  not  be  dissolved  in  consequence.(6) 
Thus,  where  it  has  been  covenanted  that  all  contracts 
entered  into  by  any  of  the  firm,  and  all  checks,  bills, 
and  receipts  for  money,  should  be  signed  in  the  joint 
names  of  all  the  partners,  a  court  of  equity  will  restrain 
one  partner  from  entering  into  any  engagement  in  the 
name  of  "  himself  and  company,"  or  "  himself  and  par- 
ners,"  or  will  dissolve  the  partnership.(c)  Were  the 
court  not  to  lay  down  this  rule  for  its  guidance,  sepa- 
rate suits  might  be  successively  instituted,  praying  for 
perpetual  injunctions  in  respect  of  the  breach  of  each 
particular  covenant,  which  is  a  species  of  jurisdiction 
the  court  has  never  decidedly  entertained.(c?)  So,  if  one 
partner  exclude  another  from  the  benefits  of  the  con- 
cern, the  court  will  interfere  and  dissolve  the  partner- 
ship ;  and  it  assumes  a  jurisdiction  on  this  ground,  that 
if  the  partners  will  not  allow  the  partnership  to  be  car- 
ried on  in  the  manner  in  which  it  ought  to  be,  it  is  a 
reason  for  putting  an  end  to  it  altogether.(c)  Neither 
will  a  court  of  equity  assist  in  the  management  of  the 
aflfairs  of  a  company  during  its  existence ;  but  if  a  suffi- 
cient case  is  made  out  to  justify  its  interposition,  it  will 
appoint  a  manager  in  the  interim^  for  the  purpose  of 
winding  up  and  putting  an  end  to  the  concern. (y)  But 
although  the  general  principle  of  the  court  is  not  to  in- 
terfere in  a  partnership  concern  unless  the  bill  prays  a 
dissolution,  yet  there  are  cases  of  partnerships  for  a 
term  of  years,  in  which  it  has  been  said  the  court  will 

(6)  Marshall  v.  Colman,  2  Jacob  &  Walk.  268.  (c)  Id.  ibid, 

{d)  Id.  ibid.  (e )  Per  Lord  Elclon,  Kinder  v.  Taylor  MSS. 

(/)  Carlen  v.  Drury,  1  Ves.  &L  Bea.   154.     Waters  v.  Taylor,  15 
Ves.  10. 

20 


112  EQ,U1TABLE  REMEDIES 

[*112]  interpose  during  *the  term,  notwithstanding  a 
dissolution  be  not  prayed.  Thus,  where  some 
of  the  members  of  a  partnership  or  company  seek  to 
embark  one  of  their  body  in  a  business  which  was  not 
originally  part  of  the  partnership  concern,  and  they  are 
unable  to  show  that  such  partner  either  expressly  or 
tacitly  acquiesced  in  the  proposed  extension  of  the  con- 
cern, a  court  of  equity  would,  it  is  apprehended,  restrain 
them  from  proceeding  in  the  execution  of  their  intention, 
without  dissolving  the  partnership  or  company.(^)  So, 
where  a  member  of  a  firm  neglected  to  enter  the  receipt 
of  partnership  money  in  the  books,  and  did  not  leave 
the  books  open  for  the  inspection  of  the  other  partner, 
equity  interfered  without  dissolving  the  partnership  ;(^) 
or  where  there  has  been  a  studied,  intentional,  prolong- 
ed, and  continued  inattention  to  the  application  of  one 
partner  calling  upon  the  other  to  observe  the  "contract  of 
partnership,  the  court  will  grant  an  injunction  against 
the  breach  of  it;(i)  and,  in  general,  circumstances  of  the 
latter  description  must  be  disclosed,  to  induce  a  judicial 
interference  on  a  breach  of  the  articles  of  partnership, 
unless  a  dissolution  be  prayed.  Therefore,  where  part- 
ners covenanted  that  their  business  should  be  carried  on 
in  their  joint  names,  and  that  all  contracts  and  engage- 
ments entered  into  by  any  of  the  parties  on  account  of 
the  trade,  and  all  checks  and  drafts  drawn  by  them,  and 
all  receipts  for  money  paid,  should  be  in  the  joint  names 
of  all  of  them,  and  some  of  the  partners  afterwards  re- 
fused to  comply  with  the  covenant,  and  to  add  the  name 
of  the  plaintiff  to  certain  contracts  entered  into  by  the 
firm.  Lord  Eldon,  on  a  bill  being  filed  which  did  not 
pray  a  dissolution  of  the  partnership,  refused  to  grant 
an  injunction,  on  the  ground  that  the  covenant  had  not 
been  infringed  for  any  length  of  time,  and  that  the  ap- 
plication of  the  plaintiflf  to  have  his  name  added  was  re- 
cent.(/:)  And  where  two  persons  agreed  to  work  a  coach 
from  London  to  Bristol,  the  one  to  provide  horses  for  a 

(g)  Natusch  V.  Irving,  Appendix,  post. 

(h)  Goodman  v.  Whitcomb,  1  Jacob  &  Walk.  592. 

(i)  Marshall  v.  Colman,  ante.  {h)  Id,  ibid. 


BETWEEN  PARTNERS.  112 

part  of  the  road  and  the  other  for  the  remainder ;  and,  in 
consequence  of  the  horses  of  one  having  been  taken  in 
execution,  the  other  provided  horses  for  the  whole  hne  of 
road  and  claimed  the  whole  profits  of  the  journey ;  the 
court,  on  the  application  of  the  debtor  under  the  execu- 
tion, who  alleged  that  his  own  horses  were  ready  at  the 
usual  times  and  places,  refused  to  interfere  by 
injunction,  and  to  restrain  *his  co-partner  from  [*  113  ] 
continuing  to  provide  horses.(/)     Neither  will 
the  court  interfere  by  injunction,  where  the  case  made 
in  support  of  it  is  merely  a  temptation  to  the  abuse  of 
the  partnership  property.     For  instance,  in  the  absence 
of  a  covenant  of  restraint,  a  partner  who  has  adventur- 
ed in  the  concern  of  one  newspaper,  will  not  be  re- 
strained from  engaging  as  a  partner  in  the  concern  of 
another  newspaper ;  because,  although  the  temptation 
thereby  held  out,  of  using  the  information  obtained  at 
the  expense  of  the  one  for  the  benefit  of  the  other,  forms 
a  powerful  objection  to  such  an  engagement,  yet  inas- 
much as  the  common  partner  does  not  necessarily  place 
himself  in  a  situation  in  which  he  is  required  to  betray 
his  duty  to  either  concern,  the  objection  seems  to  be 
founded  on  the  principle  of  policy  and  discretion,  against 
which  the  parties  may  protect  themselves  by  contract ; 
and  if  they  omit  that  precaution,  neither  law  nor  equity 
have  a  right  to  impose  a  restraint  which  the  parties 
themselves,  if  they  intended  it  should  be  imposed,  might 
have  expressed.(m)     But  a  partner  cannot  be  permitted, 
in  pursuit  of  his  private  advantage,  to  place  himself  in 
a  situation  which  gives  him  a  bias  against  the  due  dis- 
charge of  the  trust  and  confidence  he  owes  to  his  co- 
partner ;  where,  therefore,  he  had  purchased  partnership 
stock  in  exchange  for  his  own  separate  shop-goods,  it 
was  held  that  his  partner  was  entitled  to  share  in  the 
profit  of  such  barter.(w) 

Where  a  bill  is  filed  by  one  partner  in  relation  to  a 
partnership  transaction,  the  existence  of  the  partnership 
must  be  apparent  to  the  court  before  it  will  determine 


(I)  Smith  V.  Fromont,  2  Swanst.  330. 

(m)  Glassington  v.  Thwaites,  1  Sim.  <fc  Stu.  124. 

(n)  Burton  v.  Woolley,  6  Mad.  367. 


113  EQUITABLE  REMEDIES 

the  question  submitted  to  its  consideration.  There- 
fore,(o)  where  a  solvent  partner  filed  a  bill  against  his 
co-partner,  who  had  become  bankrupt,  and  his  assignees, 
praying  an  account  of  the  joint  property,  and  of  the 
debts  upon  the  footing  of  the  partnership,  and  the  as- 
signees, by  their  answer,  stated  that  they  believed  a 
partnership  did  not  exist.  Lord  Alvanley  refused  to  ad- 
judicate the  rights  of  the  parties  until  the  fact  of  the 
existence  of  the  partnership  was  established  at  law ;  al- 
though, in  that  case,  the  whole  of  the  evidence  was  in 
favour  of  the  claim  of  the  plaintiff.(l)  However,  if,  af- 
ter the  cause  is  canvassed,  it  is  perfectly  clear  that  a 

partnership  does  exist,  an  issue  will  not  be  di- 
[  *114  ]  rected.  In  a  case  of  this  decription.  Lord  *Ross' 

lyn,  in  refusing  an  issue,  observed,  that  if  the 
verdict  found  the  parties  were  not  engaged  in  partner- 
ship, he  would  not  allow  such  a  verdict  to  stand.(j9) 

Independently  of  the  administration  of  relief  by  a 
court  of  equity  in  the  cases  to  which  we  have  alluded, 
it  will,  it  seems,  in  some  instances,  interpose ;  and,  dur- 
ing the  continuance  of  a  partnership,  appoint  a  receiver 
of  the  joint  effects.  But  to  authorise  a  party  to  call  for 
the  appointment  of  a  receiver  of  the  stock  of  a  subsist- 
ing partnership,  he  must  be  prepared  to  show  a  case  of 
the  grossest  abuse,  and  of  the  strongest  misconduct,  on 
the  part  of  the  managing  partner;  for,  except  under 
such  xiircumstances,  the  court  will  not  interfere,  inas- 
much as  the  probable  result  of  its  interposition  is  the  de- 

o)  Binford  v.  Dommett,  4  Ves.  756. 
p)  Foster  v.  Hale,  5  Ves.  322. 


(1)  But  where  A.  and  B.  carried  on  trade,  as  partners,  with  the  funds 
of  A.,  in  the  name  of  B.,  and  without  any  dissokition  of  the  partner- 
ship, or  rendering  any  account  to  A.;  B.,  afterwards,  without  the  con- 
sent of  A.,  entered  into  a  partnership  with  C,  and  carried  into  the  new 
concern  all  the  funds  of  the  former  partnership ;  and  A.,  on  the  death 
of  B.,  filed  a  bill  against  his  administratrix,  and  C,  his  surviving  part- 
ner, for  a  discovery  and  account;  and  C.  demurred  to  so  much  of  the 
bill  as  sought  an  account  from  him  of  the  transactions  and  profits  of  the 
partnership  between  him  and  the  intestate,  and  of  the  personal  estate  of 
the  intestate  in  his  hands,  the  demurrer  was  over-ruled.  Long  v.  Ma- 
jestre,  1  Johns.  Cha.  Rep.  305. 


BETWEEN  PARTNERS.  114 

struction  of  the  trade.(9)  Nor  will  a  receiver  be  appoint- 
ed upon  a  summary  application,  where  there  is  a  cove- 
nant to  refer,  and  no  attempt  has  been  made  to  submit 
the  matter  in  dispute  to  arbitration.(r)  But  if,  in  the 
ordinary  course  of  trade,  any  of  the  partners  seek  to  ex- 
clude another  from  taking  that  part  in  the  concern  which 
he  is  entitled  to  take,  the  court  will  grant  a  receiver, 
because  such  conduct  warrants  a  dissolution.(s)  (1) 
The  principle,  indeed,  upon  which  the  Court  of  Chan- 
cery interferes  between  partners,  by  appointing  a  re- 
ceiver, is  merely  with  a  view  to  the  relief,  by  winding 
up  and  disposing  of  the  concern,  and  dividing  the  pro- 
duce, but  not  for  the  purpose  of  carrying  on  the  partner- 
ship.(0  Therefore,  a  receiver  of  a  partnership  will  not 
be  appointed  upon  motion,  unless  it  appear  that  the 
plaintiff  will  be  entitled  to  a  dissolution  at  the  hearing ; 
for  otherwise  the  court  might  make  itself  the  manager 
of  every  trade  in  the  kingdom.(?/)  And  where  it  seems 
absolutely  necessary  that  a  receiver  should  be 
appointed  of  ^partnership  property,  the  court  [*115] 
will  always  pause  before  it  takes  a  step  likely 
to  be  so  ruinous  to  the  parties.(v)  A  court  of  equity, 
on  an  application  properly  substantiated,  will  appoint  a 

{q)  Oliver  v.  Hamilton,  2  Anstr.  453.  Milbank  v.  Revett,  2  Meriv. 
405.  In  a  note  to  the  case  of  Glassington  v.  Thwaites,  1  Sim.  &  Stu. 
130,  it  is  questioned  by  the  learned  reporters,  whether  the  court  will 
ever  interfere  on  an  interlocutory  application  for  a  receiver  or  injunc- 
tion, in  the  case  of  a  partnership  occasioned  by  the  acts  of  the  parties, 
unless  on  circumstances  clearly  established  of  fraud,  entire  exclusion, 
or  gross  misconduct. 

(r)  Waters  v.  Taylor,  15  Ves.  10. 

(s)  Wilson  V.  Greenwood,  1  Swanst,  481.  S.  C.  1  J.  Wilson.  223. 
See  also  Read  v.  Bowers,  4  Bro.  C.  C.  441.  Charlton  v.  Poulter,  19 
Vos.  148.  n.  (c). 

(t)  Waters  v.  Taylor,  supra. 

(u)  Goodman  v.  Whitcomb,  1  Jacob  &  Walk.  589.  Chapman  v. 
Beach,  ibid.  594.  Harrison  v.  Armitage,  4  Madd.  143. 

(u)  Waters  v.  Taylor,  ante.     Peacock  v.  Peacock,  16  Ves.  57. 


(I)  The  course  in  New  York  is,  as  stated  by  the  Chancellor,  to  ap- 
point a  receiver  when  the  parties  cannot  agree  as  to  the  mode  of  wind- 
ing up  the  affairs.  Martin  v.  Fan  Schaick,  4  Paige's  Cha.  Rep.  479. 
Laiv  v.  Ford,  2  Paige's  Cha.  Rep.  310.  See  1  Desaus.  Cha.  Rep.  429. 


115  EqUITABLE  REMEDIES 

receiver  of  a  mine  or  colliery,  as  well  as  of  an  ordinary 
partnership  in  trade ;  because,  where  persons  have  diffe- 
rent interests  in  such  a  subject,  and  manufacture  and 
bring  to  market  the  produce  of  the  land  as  one  conmion 
fund,  to  be  sold  for  their  common  benefit,  it  is  to  be  re- 
garded rather  as  a  species  of  trade  or  partnership  than 
as  a  mere  tenancy  in  common  in  the  land.(:c)  But  if  the 
claimant  to  an  equitable  interest  in  such  a  concern, 
knowingly  suffers  great  expense  and  risk  to  be  incurred 
before  he  asserts  his  equitable  right,  and  keeping  aloof 
while  the  undertaking  is  hazardous,  seeks  the  interposi- 
tion of  the  court  only  when  it  is  attended  with  a  profit- 
able result,  the  court  will  not  interfere  by  appointing  a 
receiver  on  motion,  and  it  is  doubtful  whether  it  would 
interpose  in  such  a  case,  even  by  decree.(^)(l)  In  parti- 
cular cases,  equity  will  restrain  the  improper  conduct  of 
a  partner  without  appointing  a  receiver.(z)  Where,  by 
the  partnership  agreement,  the  concern  was  to  be  ma- 
naged by  a  committee,  the  share  of  each  proprietor 
dying  or  retiring,  to  be  first  offered  to  the  committee,  to 
be  purchased  for  the  general  body,  it  was  held  that  the 
whole  concern  could  not  be  sold  but  with  the  consent  of 
all ;  and  that  where  all  but  two  out  of  thirty-one  had 
agreed,  and  sold  the  concern,  such  sale  did  not  pass  the 

{x)  Jefferys  v.  Smith,  1  Jacob  &  Walk.  298.  Story  v.  Lord  Wind- 
sor, 2  Atk.  630.  Crawshay  v.  Maule,  1  Swanst.  518.  S.  C.  1  J.  Wills. 
181.  Williams  v.  Attenborough,  1  Turner,  73.  Fereday  v.  Wight- 
wick,  1  Taralyn,  250. 

(y)  Norway  v.  Rowe,  19  Ves.  144.  Senhouse  v.  Christian,  cited 
ib.  157. 

(z)  Seeley  v.  Boehm,  2  Madd.  176. ;  but  see  Smith  v.  Fromont,  3 
Swanst.  330,  and  Glassington  v.  Thwaites,  1  Sim.  &  Stu.  124. 


(1)  Where  a  partnership  has  expired  by  effluxion  of  time,  and  in  a 
suit  for  an  account,  &c.  a  receiver  has  been  appointed  before  decree, 
the  court  will  not  compel  the  defendant  to  deliver  up  to  the  receiver, 
for  the  purpose  of  making  out  bills  of  costs,  partnership  books  and  ac- 
counts, which  have  remained  in  his  hands,  and  title  deeds  belonging  to 
a  third  party,  which  came  into  the  possession  of  the  co-partners  as  so- 
licitors, such  defendant  offering  to  the  receiver  free  access  thereto,  and 
to  assist  in  making  out  the  bills.  Dacie  v.  John,  McClell,  &  Young's 
Rep.  206. 


BETWEEN    PARTNERS.  115 

share  of  such  two ;  but  in  such  a  case  there  need  be  no 
previous  offer  to  the  committee.(a) 


^CHAPTER  III.  [*116] 

SECTION  1. 
Legal  Remedies  for  Partners  against  Strangers. 

In  the  foregoing  chapter  we  had  occasion  to  consider 
the  rights  of  partners  as  to  property  in  possession,  whe- 
ther personal  or  real,  and  also  to  investigate  the  legal 
and  equitable  remedies  to  which  they  may  resort  for  the 
adjustment  of  differences  arising  amongst  themselves. 
We  will  now  proceed  to  enquire  into  their  rights  as  to 
the  other  great  division  of  things,  viz.  choses  in  action; 
and  at  the  same  time  point  out  what  remedies  the  law 
has  afforded  them  for  the  assertion  of  such  rights,  when 
they  are  invaded  by  persons  unconnected  in  interest 
with  them. 

Rights  of  the  latter  description  arise  chiefly  from  the 
executory  contracts  partners  enter  into  with  third  persons. 
Of  the  general  nature  of  contracts,  of  the  consideration 
necessary  to  a  valid  promise  of  the  provisions  of  the 
statute  of  frauds  upon  this  subject,  and  of  the  manner  in 
which  agreements  are  to  be  construed,  it  would  be  fo- 
reign to  our  present  purpose  to  inquire.  With  regard 
to  such  points,  it  is  immaterial  whether  there  be  only  two 
individual  parties  to  the  contract,  or  any  greater  num- 
ber ;  and  it  is  the  object  of  this  treatise  to  point  out  what 
is  peculiar  and  characteristic  in  the  transactions  of  part- 
nerships. 

A  promise  or  undertaking  to  one  of  several  partners 
in  the  course  of  business,  is  construed  by  law  to  be  made 
to  all  of  them,  and  all  are  entitled  to  take  advantage  of 

(a)  Chappie  v.  Cadell,  Jac.  537. 


116  LEGAL  REMEDIES    FOR    PARTNERS 

it ;  whether  the  promise  be  express  or  implied^  the  legal 
consequence  will  be  the  same.  Thus  an  agreement  to 
sell  a  cargo  of  coals  to  either  of  two  coal  merchants  in 
partnership,  would  be  held  a  contract  with  both  jointly ; 
in  the  same  manner  as  the  law  Avould  raise  the  implied 
promise  of  a  customer  purchasing  a  part  of  the  coals 
from  one  of  them,  to  be  for  the  benefit  of  both.  In  cases 
of  doubt  the  criterion  to  determine  the  nature  of  the 
promise,  must  be  the  nature  of  the  consideration  ;  if  the 
consideration  proceeds  from  the  partnership,  the  promise 

will  be  inferred  to  be  to  the  members  jointly, 
[*117]  *and  vice  versa.     As  for  instance,  if  goods  are 

sold  belonging  to  the  partnership,  or  if  goods 
are  bargained  for  to  be  paid  from  the  partnership  funds, 
there  a  joint  action  would  lie  to  recover  the  price  of  the 
first  goods,  and  damages  for  the  non-delivery  of  the 
others ;  but  if  work  and  labour  be  performed  by  the 
separate  servant  of  one  partner,  or  this  one  partner  has 
paid  a  sum  of  money  for  the  repairs  of  his  own  dwelling- 
house,  it  is  clear  that  he  alone  is  interested  in  these 
contracts,  and  that  he  alone  can  sue  upon  them ;  at  the 
same  time,  though  contracts  in  the  course  of  business 
with  part  of  a  firm  are  considered  as  for  the  benefit  of 
all  the  members  composing  it,  still  the  partnership  is  in- 
capable of  treating  as  a  corporation  or  body  politic.  It 
has  no  continuance  independent  of  the  particular  indi- 
viduals of  whom  it  is  formed ;  rights  are  not  vested  in  it, 
but  in  them ;  so  that  there  is  no  transmission  of  rights 
to  successions  in  a  mercantile  house,  and  all  running 
agreements  with  a  partnership,  we  shall  presently  see, 
cease  when  any  change  takes  place  by  death,  the  re- 
tiring of  one  partner,  or  the  admission  of  another,  into 
the  set  of  partners  existing  at  the  time  the  agreements 
were  concluded. 

It  never  could,  however,  be  doubted,  that  contracts  in 
themselves  immoral  and  illegal  afford  no  right  of  action, 
either  to  the  person  entering  into  them  or  his  co-partners ; 
and  it  is  settled  that  where  the  knowledge  of  any  parti- 
cular circumstance  vitiates  a  contract  which  otherwise 
would'  be  valid,  the  knowledge  of  one  is  considered  as 
the  knowledge  of  all,  as  completely  as  if  the  circum- 


AGAINST    STRANGERS.  117 

Stance  had  been  actually  communicated  to  them.  Thus, 
an  action  cannot  be  maintained  by  several  partners  for 
goods  sold  by  one  of  them  living  in  Gvernscij^  and  pack- 
ed by  him  in  a  particular  manner  for  the  purpose  of 
smuggling,  though  the  other  partners,  who  resided  in 
England^  knew  nothing  of  the  sale ;  for  it  is  a  contract 
by  subjects  of  this  country,  made  in  contravention  of  the 
laws ;  and  such  a  case  must  be  considered  in  the  same 
light  with  respect  to  the  whole  firm,  as  if  all  the  partners 
had  lived  in  Englancl.{ci)  With  reference  to  personal 
torts,  they  can  seldom  be  sustained  jointly  by  persons 
who  are  united  together  as  partners.  Injuries  of  this 
description  are  mostly  of  a  separate  nature,  affecting 
only  a  single  individual ;  and  where  this  is  the  case,  the 
injured  person  can  alone  assert  the  remedy 
^applicable  to  the  injury  sustained.  However,  [*118] 
slander,  which  is  a  species  of  personal  tort,  may 
jointly  affect  partners,  if  (as  by  a  false  representation 
of  their  solvency)  it  have  relation  to  the  trade  in  which 
they  are  engaged.  It  has,  therefore,  been  decided,  that 
if  defamatory  words  be  spoken  of  two  partners,  affecting 
them  in  their  trade,  they  may  maintain  a  joint  action  for 
the  slander,  where  it  is  attended  with  special  damage.(i) 
But  Mr.  Serjeant  Williams  has  expressed  his  opinion  to 
be,  that  the  statement  of  special  damage  is  not  a  neces- 
sary ingredient  to  the  support  of  the  action  ;  for  that  if 
the  words  are  actionable,  because  they  are  spoken  of 
partners  in  the  way  of  their  trade,  a  joint  action  may  be 
maintained,  although  the  partners  have  not  sustained  any 
special  damage  by  reason  of  the  speaking  them.(c)(l) 
And   in   perfect   conformity  with  this  opinion,   it  has 

(«)  Biggs  V.  Lawrence,  3  T.  R.  454.     See  also  Cliigas  v.  Penaluna, 

4  T.  R.  466.     Hodgson  v.  Temple,  5  Taunt.  181.     Waymill  v.  Read, 

5  T.  R.  599. 

{b)  Cook  V.  Batchellor,  3  Bos.  &  Pul.  150.  January  v.  Spires, 
cited  ibid.  See  also  Mailland  v.  Goldney,  2  East,  426.  Worton  v. 
Smith,  6  B.  Moore,  110.  Solomons  v.  Medex,  1  Stark.  191.  Furni- 
val  V.  Weston,  7  B.  Moore,  356. 

(c)  See  the  note  on  Cory  ton  v.  Lithebye,  2  Saund.  117,  a.     Bro- 


(1)  But  in  a  joint  action  for  a  libel  by  two  partners,  damages  cannot 

21 


118  LEGAL   REMEDIES    FOR  PARTNERS 

since  been  held,  that  where  a  co-partnership  is  libelled, 
and  the  libel  contains  something  which  particularly 
affects  the  character  of  one  of  the  firm,  a  joint  action 
may  be  maintained  against  the  hbeller;  and  that  it  is 
not  necessary  to  show  what  proportion  of  interest  each 
partner  had  in  the  joint  business ;  nor  to  set  out  any 
special  damage.(cr)  But  although  partners,  in  their  col- 
lective capacity,  are  furnished  with  the  same  remedies 
which  individuals  possess  for  the  assertion  of  their  rights, 
cases  have  occurred,  in  which,  notwithstanding  a  loss 
has  been  sustained,  the  law  has,  of  necessity,  been  com- 
pelled to  deny  a  remedy  to  redress  it.  The  class  of 
cases  to  which  allusion  is  made  is  that  in  which  the 
same  person  being  engaged  in  two  different  firms,  a  con- 
tract is  made  by  the  one  concern  with  the  other,  or  the 
negotiable  paper  of  the  one  gets  into  the  possession  of 
the  other  concern.  Where  such  an  occurrence  takes 
place,  damages  cannot  be  recovered  at  law  for  a  breach 
of  the  contract,  nor  can  payment  of  the  negotiable  in- 
strument be  enforced  by  any  legal  remedy.  The  indi- 
viduality of  the  person  of  the  common  partner  cannot 
be  severed ;  no  man  can  contract  with  himself,  nor  can 
he  bind  himself,  in  the  society  of  one  set  of  persons 

to  another  in  which  he  is  also  a  partner.  In 
[*119]  *an  action  founded,  either  on  a  breach  of  the 

contract  or  on  the  security,  he  must  join,  al- 
though at  the  same  time,  and  in  an  ordinary  case,  he  has 
incurred  that  responsibility  which  subjects  him  to  be  called 
upon  to  fulfil  the  identical  engagement  he  himself  must 
seek  to  enforce.  It  would,  indeed,  be  an  anomaly  in 
the  law,  if  the  same  person  could,  in  the  same  suit, 
sustain  the  twofold  character  of  a  plaintiff  and  a  defend- 
ant ;  or,  in  different  words,  could,  in  concurrence  with 

mage  v.  Prosser,  4  B.  &  C.  247.  It  is  actionable  to  say,  of  a  banking 
partnership,  that  they  have  suspended  payment,  Foster  v.  Lawson,  3 
Bingh.  452, 

{d)  Foster  v.  Lawson,  supra. 


be  given  for  any  injury  to  their  private  feelings,  but  only  for  such  in- 
jury as  they  may  have  sustained  in  their  joint  trade  or  business.  Hay- 
thorn  et  al.  V.  Lawson,  3  Carr.  &  Payne,  196. 


AGAINST    STRANGERS.  119 

Others,  attempt  to  enforce  reparation  for  a  breach  of 
contract  jointly  committed  by  himself  and  those  with 
whom  he  has  associated.  In  equity,  perhaps,  the  con- 
tract and  the  negotiable  security,  if  the  latter  have  the 
appropriate  stamp,  might  be  enforced  as  equitable  agree- 
ments,(e)  but  neither  of  them  can  be  made  the  founda- 
tion of  an  action  at  law.(/)(l)  Thus,  where  one  of 
three  partners  made  a  promissory  note,  payable  to  hiin- 
self  and  partners,  who  indorsed  it  to  another  firm,  in 
which  one  of  the  original  payees  was  a  partner,  on  as- 
sumpsit by  the  indorsees  against  one  of  the  indorsers, 
the  latter  pleaded  in  bar  that  one  of  the  plaintiffs  was 
liable  with  him  as  an  indorser,  and  on  special  demur- 
rer, this  plea  was  held  good.(^)  So,  in  a  later  case,  the 
Court  of  Common  Pleas,  on  the  ground  of  the  legal  disa- 
bility of  a  partner  to  contract  with  the  firm,  held,  that 
the  partners  in  one  house  of  trade  could  not  maintain  an 
action  against  the  partners  in  another  house  of  trade,  of 
which  one  of  the  partners  in  the  plaintiffs'  house  was 
also  a  member,  for  transactions  which  took  place  while 

(e)  See  diet,  of  Lord  Eldon,  in  Mainwaring  v.  Newman,  2  Bos.  & 
Pnl.  120.  See  also  diet,  of  Gibhs,  C.  J.,  in  Bosanquet  v.  Wray,  2 
Marsh.  234. 

(/)  Id.  Ibid.  See  also  Moffat  v.  Van  Milligen,  cited  2  Bos.  &  Pul. 
120.  De  Tastet  v.  Shaw,  1  B.  &  A.  664.  Neale  v.  Turton,  4  Bingh. 
149.  Teague  v.  Hubbard,  8  B.  &  C.  345.  S.  C.  2  Mann.  &i  Ryl. 
369.  Harvey  v.  Kay,  9  B.  &  C.  356.  In  a  late  case,  where  A,  a 
partner  in  two  concerns,  was  indebted  to  one  of  them,  and  before  the 
dissolution  of  that  partnership,  and  unknown  to  his  partner  in  the  other 
concern,  indorsed  a  bill  and  paid  over  money  belonging  to  the  latter 
concern  in  discharge  of  the  private  debt  due  from  himself  to  the  former 
partnership,  and  immediately  afterwards  indorsed  the  same  bill  to  a 
creditor  of  that  partnership  :  the  last-mentioned  partnership  having  been 
dissolved,  it  was  held  that  neither  A  and  his  partner  in  the  one  con- 
cern, nor  their  assignees  (they  having  become  bankrupts),  could  main- 
tain trover  against  the  members  of  the  other  concern  for  the  bill,  or  as- 
sumpsit for  the  money  paid  by  A  out  of  the  funds  of  the  one  in  dis- 
charge of  his  private  debt  due  to  the  other  partnership.  Jones  v.  Yatea, 
9  B.  &;  C.  532. 

[g)  Mainwaring  v.  Newman,  supra. 

(1)  In  Scotland,  debts  between  companies  in  which  the  same  indi- 
vidual is  partner,  are  every  day  sustained  as  quite  unexreplionahle. 
BelVs  Comm.  vol.  2.  p.  620. 


119         LEGAL  REMEDIES  FOR  PARTNERS 

he  was  a  partner  in  both  houses.(A)  And  the  objection, 
which  goes  to  the  root  of  the  contract,  applies  as  forci- 
bly against  the  representatives  of  the  common 
[  *120  ]  partner.  *It,  therefore,  can  make  no  difference, 
whether  the  action  be  brought  in  the  lifetime  or 
after  the  decease  of  the  latter,  because,  as  no  legal  cou- 
tract  ever  existed,  it  cannot,  in  any  event,  be  rendered 
available  at  law.(i)  But  the  surviving  partners  of  the 
one  house  may  sue  the  surviving  partners  of  the  other 
house,  upon  transactions  which  have  taken  place  subse- 
quently to  the  decease  of  the  common  partner ;  for,  as 
regards  such  transactions,  they  sustain  merely  the  char- 
acter of  strangers,  possessing  no  identity  of  interest.(A:) 
Analogous  in  principle,  is  the  case  of  one  firm,  partly 
composed  of  a  common  partner,  attempting  to  enforce  a 
security  against  a  stranger,  after  satisfaction  for  the  se- 
curity has  been  obtained  by  the  other  firm.  In  such  a 
case,  the  money  received  by  the  one  firm,  being  paid  and 
accepted  in  satisfaction  of  the  security,  the  common 
partner  will  not  be  permitted  to  contravene  the  receipt 
of  it  for  that  purpose,  nor  w  ill  he  be  allowed  to  sue  upon 
a  bill,  which  as  regards  himself  has  been  already  satis- 
fied, although  he  be  ignorant  of  the  circumstances  which 
constitute  the  satisfaction.  Therefore,  where  A  was  a 
partner  with  B,  in  one  mercantile  house,  and  with  C  in 
another,  and,  after  the  former  house  had  indorsed  a  bill 
of  exchange  to  the  latter,  B,  acting  for  the  firm  of  A  and 
B,  received  securities  to  a  large  amount  from  the  drawer 
of  the  bill,  upon  an  agreement  by  B,  that  the  bill  should 
be  taken  up  and  liquidated  by  B's  house,  and,  if  not  paid 
by  the  acceptors  when  due,  should  be  returned  to  the 
drawer,  the  Court  of  King's  Bench  held,  that  the  depo- 
sited securities  being  paid,  and  the  money,  therefore, 
being  received  by  B  in  satisfaction  of  the  bill,  A  was 
bound  by  this  act  of  his  partner  B  in  all  respects,  and 
therefore  could  not,  in  conjunction  with  C,  his  partner  in 
the  other  house,  maintain  an  action,  as  indorsees  and 
holders  of  the  bill,  against  the  acceptors,  after  such  satis- 

(A)  Bosanquet  v.  AVray,  supra. 

(i)  Bosanquet  v.  Wray,  2  Marsh  319.     S.  C.  6  Taunt.  597. 

(k)  Id.  Ibid. 


AGAINST   STRANGERS.  120 

faction  received  through  the  medium  of,  and  by  agree- 
ment with  B,  in  discharge  of  the  same.(/)     And  it  is  a 
good    defence   to  show  that  one    of    several  plaintiffs 
cannot   recover,   notwithstanding  he   may    have   been 
guilty  of  fraud  against  the  rest.     Thus,  where  one  of 
three  partners,  unknown  to  the  others,  undertook  to  pro- 
vide for  a  bill  of  exchange,  drawn  by  the  three  upon  and 
accepted  by  a  fourth  person,  although  such  engagement 
was  made  in  fraud  of  his  copartners,  yet  it  was 
held  that  no  action  *could  be  maintained  upon  [*121  ] 
the  bill  against  the  acceptor.(m)     So,  where  one 
of  several  partners  in  a  banking-house  drew  a  bill  m  his 
own  name  upon  a  third  party,  who  accepted  the  same, 
upon  condition  that  the  drawer  should  provide  for  it 
when  due,  it  was  held  that  as  he  having  failed  in  per- 
forming the  condition  could  not  have  sued  the  defendant, 
his  partners  being  bound  by  his  acts  could  not  maintain 
a  joint  action.(«)     Neither  can  partners  assert  a  right 
accruing  to  them  in  their  collective  characters,  where 
some  of  the  members  of  the  firm  are  under  a  legal  inca- 
pacity to  sue.     For  instance,  if  one  of  two  partners, 
though  an  Englishman,  be  resident  and  carry  on  trade 
in  an  enemy's  country,  a  joint  contract  entered  into  with 
the  firm  cannot  be  enforced  by  the  other  partner,  be- 
cause his  copartner,  residing  under  the  allegiance  and 
protection  of  an  hostile  state,  for  all  commercial  purpo- 
ses, is  to  be  considered  to  all  civil  purposes  as  much  an 
alien  enemy  as  if  he  were  born  there.(o)(l)     But  if  his 
residence  in  an  enemy's  country  be  for  the  purpose  of  a 
trade  licensed  by  the  government  of  this  country,  it  does 

(/)  Jacaud  v.  French,  12  East,  317. 

(m)  Riclimond  v.  Heapy,  1  Stark.  N.  P.  C.  202.  S.  P.  Johnson 
V.  Peck,  3  Stark,  on  Evid.  1068.  S.  C.  3  Stark.  N.  P.  C.  66  ;  and 
see  Hunter  v.  Richardson,  6  Madd.  89. 

(n)  Sparrow  v.  Chisman,  9  B.  &  C.  241. 

(o)  McConnel  v.  Hector,  3  Bos.  &  Pul.  113.  See  also  O'Meally 
V.  Wilson,  1  Campb.  482.     Albrecht  v.  Susraan,  2  Ves.  <fe  Bea.  323. 


(1)  Per  Story,  2  Gallis.  Rep.  130.  See  The  Ann  Green,  The  Jo- 
seph, The  Francis,  I  Gallis.  Rep.  274.  545.  614.  Griswold  v.  Jfad- 
dington,  16  Johns.  Rep.  438. 


121  LEGAL    REMEDIES    FOR    PARTNERS 

not  constitute  a  disability. (jo)  Neither  is  the  legal  right 
of  partners  affected  by  the  residence  merely  of  one  of 
the  members  of  the  firm  in  a  hostile  country,  if  such  re- 
sidence be  unconnected  with  an  adherence  to  the  ene- 
my.(y)  Where  one  of  three  partners,  the  other  two 
being  neutrals,  obtained  a  license  as  broker  on  behalf  of 
several  British  merchants  to  trade  to  an  enemy's  coun- 
try, and  before  action  brought  the  two  neutrals  became 
enemies,  it  was  held  that  the  broker  might  maintain  an 
action  on  a  policy  of  insurance,  to  recover  the  value  of 
the  joint  interest  of  the  three.(r) 

Partners  sometimes  seek  to  enforce  a  guarantee  given 
to  secure  the  repayment  of  an  advance  to  be  made  by 
the  firm.  In  such  a  case  the  action  must  necessarily  be 
brought  by  all  the  partners  to  whom  the  guarantee  is 
given,  and  by  whom  the  advance  is  made.     And  where 

a  contract  of  that  description  is  apparently 
[  *122  ]  *entered  into  in  favour  of  one  partner  only,  yet 

if  in  fact  it  be  intended  as  an  indemnity  to  the 
firm  in  respect  of  an  advance  to  be  made  by  them,  a 
joint  action  may  be  maintained.  Thus,  in  the  late  case 
of  Garrett  and  another  v.  Handley^{s)  which  was  an 
action  on  a  guarantee  by  two  as  the  survivors  of  a  firm 
of  three  partners,  it  appeared  that  the  guarantee  was 
addressed  to  one  of  the  partners  only,  but  evidence  was 
produced  which  established  that  the  advance,  to  secure 
which  the  guarantee  was  entered  into,  was  made  by  the 
firm,  and  that  the  guarantee  was  given  for  their  joint  be- 
nefit and  not  to  indemnify  the  single  partner  only :  it  was 
objected  at  nisi  prius,  and  afterwards  insisted  upon  on  a 
motion  to  enter  a  nonsuit  that  there  was  a  misjoinder, 
for  as  the  guarantee  was  in  terms  given  to  one  partner, 
to  whom  alone  the  promise  could  be  construed  to  have 
been  made,  the  action  should  have  been  brought  by  him 
only ;  but  the  Court  of  King's  Bench  held,  that  as  the 
guarantee  was  proved  to  have  been  intended  for  the 

(p)  Ex  parte  Baglehole,  18  Ves.  525.     S.  C.   1  Rose,  271.     See 
alsoUsparicha  v.  Noble,  13  East,  332.     Flindt.  v.  Scott,  5  Taunt.  674. 
(q)  Roberts  v.  Hardy,  3  Mau.  &  Selw.  533. 
(r)  De  Tastet  v.  Taylor,  4  Taunt.  233. 
(s)  4  B.  &  C.  664. 


AGAINST  STRANGERS.  122 

benefit  of  the  firm,  the  action  was  properly  brought  by 
the  surviving  partners.  And,  under  such  circumstances, 
it  is  not  competent  to  the  partner,  to  whom  the  gua- 
rantee may  have  been  addressed,  to  treat  the  advance 
as  one  made  by  himself  on  his  individual  account,  and  in 
that  character  to  support  a  separate  action.  This  was 
determined  in  a  previous  action  on  the  same  guarantee, 
and  in  which  the  plaintiff  declared  that  in  consideration 
that  he  would  advance  a  sum  of  money  to  A  B,  the 
defendant  promised  that  provision  should  be  made  for 
repaying  the  plaintiff.  At  the  trial  it  appeared  that  the 
defendant  had  given  to  the  plaintiff  the  guarantee  stated 
in  the  declaration,  and  that  the  latter  was  a  partner  with 
two  other  persons  in  a  banking-house,  and  that  the  firm 
had  advanced  the  money,  and  charged  A  B  in  account 
with  the  same ;  and  it  was  held  that  the  averment  in 
the  declaration  that  the  plaintiff  had  advanced  the  money 
was  not  sustained  by  the  proof,  there  being  no  evidence 
to  show  that  the  money  had  been  advanced  to  the  plain- 
tiff by  the  firm,  and  by  him  to  A  B.(t)  It  is  not  to  be 
collected  from  either  of  the  two  preceding  cases,  nor 
was  it  in  fact  necessary  to  determine  whether  the  partner 
to  whom  the  guarantee  was  actually  given  could  have 
maintained  a  separate  action  upon  it,  provided  his  de- 
claration so  truly  and  correctly  stated  the  facts  as  not 
to  have  been  open  to  the  objection  of  a  variance 
between  *the  allegation  and  the  proof.  But  ['123j 
judging  from  analogy  to  the  rule  applicable  to  a 
policy  of  insurance,  which  allows  the  action  to  be 
brought  either  by  the  party  for  whose  benefit  it  was 
effected,  or  in  the  name  of  him  who  eflfected  it,(i^)  it 
would  seem  that  that  partner,  as  being  the  party  with 

(t)  Garrett  v.  Handley,  3  B.  &  C.  462. 

(u)  See  Bell  v.  Ansley,  16  East,  141  ;  and  the  observation  of 
Bayley,  J.,  4  B.  &  C.  666.  In  an  action  on  a  policy,  a  material  vari- 
ance between  the  interest  averred  in  the  declaration  and  that  proved  at 
the  trial  will  be  a  ground  of  nonsuit.  Thus,  where  the  interest  was 
alleged  to  be  in  a  single  person,  and  the  policy  purported  to  be  made 
on  his  account,  where  in  fact  several  were  jointly  interested,  and  the 
policy  was  made  on  their  joint  account,  the  variance  was  held  to  be 
fatal.  Bell  v.  Ansley,  supra.  And  see  Cohen  v.  Hannam,  5  Taunt. 
101.     Carruthers  u.  Sheddon,  1  Marsh.  416.     S.  C.  6  Taunt.  14. 


123  LEGAL  REMEDIES  FOR  PARTNERS 

whom  the  contract  was  made,   might   have  supported 
such  an  action. 

Actions  are  also  not  unfrequently  brought  by  partners 
against  a  third  person,  who  has  guaranteed  the  honesty 
and  fidehty  of  a  clerk  or  servant  in  their  employ.  In 
such  cases,  attempts  have  been  made  to  establish  the 
guarantee,  as  an  indemnity  to  the  liouse  of  trade,  rather 
than  to  the  members  composing  it.  But,  after  many  de- 
cisions upon  the  subject,  the  principle  applicable  to  such 
instruments  seems  to  be  this :  that,  as  every  partnership 
ceases  to  be  the  same  if  any  alteration  is  made  in  the 
parties  of  which  it  is  composed,  so  the  prospective  ope- 
rations of  a  guarantee  given  to  a  partnership  will  cease 
upon  any  change,  either  by  the  death  or  withdrawing  of 
any  of  the  partners,  or  the  addition  of  a  new  one,  unless 
the  guarantee  itself  contain  some  provision  contemplat- 
ing such  change,  and  continuing  its  operation  to  the 
succeeding  partnership.  In  the  first  case  affording  a 
solution  of  this  principle,  it  was  decided  that  a  bond 
given  to  a  sole  trader,  as  a  security  for  the  conduct  of 
liis  clerk,  did  not  render  the  surety  responsible  for  any 
defalcation  committed  by  the  clerk  after  the  obligee  had 
entered  into  partnership  with  a  third  person.(y)  So,  a 
promise  to  three  partners  to  pay  for  goods  to  be  fur- 
nished to  a  particular  individual,  does  not  extend  to 
goods  furnished  by  two  of  them  after  the  third  partner 
has  retired  from  the  business.(.r)  The  responsibility  of 
the  surety  likewise  terminates  on  the  death  of  any  one 
of  the  partners  with  whom  the  engagements  of  surety- 
ship was  formed.(y)  And  if  the  frame  and 
[*124]  *constitution  of  any  society  or  partnership  be 
otherwise  materially  altered,  the  prospective 
effect  of  a  guarantee,  previously  given,  will  cease.(l) 

{v)  Wright  V.  Russell,  3  Wils.  530.  S.  C.  2  Bl.  Rep.  934. 

{x)  Myers  v.  Edge,  7  T.  R.  254. 

{y)  Strange  r.  Lee,  3  East,  484.  Weston  v.  Barton,  4  Taunt.  673. 
S.  P.  In  a  modern  case,  where  a  person,  by  bond,  became  surety  for 
such  sums  as  should  be  advanced  to  meet  bills  drawn  by  two  partners 
or  either  of  them,   it    was   held,  from   the   language  of  the   condi- 


(1)  Crcmcr  v.  Higginson  ^'  Perkins,  1  Mason's  Rep.  323. 


AGAINST    STRANGERS.  124 

Thus,  where  a  bond  had  been  given  by  the  defendant's 
testator  to  the  plaintiff  and  several  other  persons,  since 
deceased,  governors  of  the  Society  of  Musicians,  pa?/a6/e 
to  them  and  their  successors  as  governors,,  conditioned  for 
the  fidelity  of  one  J.  H.  as  their  collector,  and  the  society 
was  afterwards  incorporated,  it  was  held,  that  the  exe- 
cutors of  the  obligor  were  not  liable,  since,  after  the 
charter  of  incorporation,  the  society  constituted  a  per- 
fectly new  body  of  persons,  in  the  judgment  of  the  law.(2') 
But  an  engagement  may  be  framed  to  meet  a  change  or 
alteration  in  the  partnership,  and  be  afterwards  binding 
upon  the  person  who  may  guarantee  either  the  payments 
or  fidehty  of  another.  This  was  expressly  laid  down  by 
Mr.  Justice  Lawrence,(a)  who  said,  "A  bond  may  be 
drawn  with  the  condition  now  insisted  on  in  argument, 
for  the  obligor  to  be  answerable,  not  only  to  the  present, 
but  to  all  future  partners  in  the  house ;  but  that  has  not 
been  done  here."  The  bond  of  indemnity  in  the  case  of 
Barclay  v.  Lucas(h)  was  regarded  by  the  Court  of  King's 
Bench  as  an  engagement  of  that  description.  There  the 
court  considered  the  undertaking  as  having  been  given 
to  the  house,  and  not  to  the  individual  members  of  it, 
and,  therefore,  they  held,  that  it  was  not  discharged  by 
any  change  of  partners.  But  how  far  the  wording  of 
the  engagement  in  that  case  fairly  admitted  the  con- 
struction put  upon  it  by  the  court,  is  a  question  that  has 
admitted  of  some  doubt.(c)  The  same  point  came  under 
discussion  in  a  later  case,(c?)  in  which  a  bond  had  been 
given  to  the  plaintiff  and  four  others,  trustees  for  the 
Globe  Insurance  Company^  conditioned  for  the  honesty 
and  faithful  service  of  one  A.  B.  to  the  said  Company, 
and  it  Avas  determined,  that  this  was  an  engagement  for 
the  faithful  service  of  the  party  to  such  persons,  who, 


tion,  that  its  operation  was  confined  to  debts  contracted  during  the  joint 
lives  of  the  partners.     Simson  v.  Cooke,  Bingh.  452. 

(z)  Dance  v.  Girdler,  1  New  Rep.  34. 

(a)  Strange  v.  Lee,  3  East,  491. 

(6)   1  T.  R.  291.  note  (a).    See  Kipling  v.  Turner,  .5  B.  &  A.  261. 

(c)  See  the  judgment  of  Lord  EUenborough  in  Strange  v.  Lee,  supra. 

(d)  Metcalf  j;.  Bruin,  12  East,  400.     S.  C.  2  Campb.  422. 

22 


125  LEGAL  REMEDIES  FOR  PARTNERS 

for  the  time  being,  should  constitute  the  Globe 
[*125]  Insurance  Company.     In  conformity  *with  the 

principle  established  by  the  preceding  cases,  it 
has  been  decided,  that  where  a  guarantee  or  security  is 
given  on  the  behalf  of  one  person,  or  of  certain  persons, 
constituting  a  partnership  firm,  and  another  or  others 
are  afterwards  introduced,  or  other  material  change 
takes  place,  after  which  the  parties,  to  whom  the  secu- 
rity is  given,  continue  their  dealings,  knowing  of  the 
change,  there  is  an  end  of  the  security .(e)  In  a  late 
case  it  was  doubted  whether  a  mortgage  to  partners, 
their  heirs  and  assigns,  to  secure  debts  due  or  to  become 
due  to  them  or  the  survivor,  was  available  to  a  new 
partnership  formed  by  the  addition  of  another,  in  whose 
time  the  debt  accrued.(/)  But  where  title-deeds  are 
deposited  by  way  of  security  with  a  firm,  upon  a  verbal 
agreement,  the  deposit  may  be  extended  by  a  subsequent 
verbal  agreement  for  the  security  of  a  new  sum  upon  a 
change  of  par tners.(^)  And  in  a  recent  case,  an  agree- 
ment, by  way  of  deposit  of  title-deeds,  with  a  firm  of 
five,  one  of  whom  was  a  nominal  partner  only,  was  ex- 
tended by  subsequent  agreement  to  the  actual  partner- 
ship of  four.(A) 

(e)  Bellairs  v.  Hobsworth,  3  Campb.  53. 

In  Parker  v.  Wise,  6  Mau.  &  Selw.  239,  which  was  an  action  of 
debt  on  bond,  the  defendant  pleaded  that,  after  the  making  of  the  bond, 
the  partnership  of  obligees  was  dissolved,  and  a  new  partnership  form- 
ed, by  the  retiring  of  one  of  the  old  partners  and  admitting  a  new 
partner,  with  which  new  partnership  the  parties  for  whom  the  defen- 
dant was  surety,  with  the  privity  of  the  retired  partner,  kept  an  account, 
and  that  at  the  time  of  the  dissolution  of  partnership  the  sum  secured 
was  due  from  those  parties  to  the  partnership  for  such  overdrawing,  but 
the  partnership  did  not  at  any  time  demand  payment  of  it,  but,  on  the 
contrary,  at  and  after  the  dissolution,  discharged  them  from  making 
such  payment,  and  consented  that  the  balance  should  be,  and  it  was 
transferred  to  the  account  between  them  and  the  new  partnership,  and 
became  incorporated  in  their  account ;  and  it  was  held  on  demurrer  that 
the  plea  was  bad,  for  an  assignment  of  a  chose  in  action  is  no  discharge 
of  an  obligation. 

(/)  JEx  parte  Watson,  19  Ves.  459. 

(o-)  Ex  parte  Kensington,  2  Ves.  &  Bea.  79.  Ex  parte  Lloyd,  1 
Glyn  &  James.  389. 

(A)  £x  parte  Alexander,  1  Glyn  &,  James.  409.  Fide  also  Ex 
parte  Marsh,  2  Rose,  239.     Ex  parte  Browne,  lb.  n.     But  the  doc- 


AGAINST    STRANGERS.  125 

In  actions  ex  contractu^  or  actions  founded  upon  con- 
tract, the  general  rule  is,  that  if  the  cause  of  action  be 
joint,  all  the  joint  contractors,  if  living,  must  concur  and 
join  in  bringing  the  action  ;(i)  or  if  some  are  dead,  the 
action  must  be  brought  by  the  survivors.(A:) 
Partners,  therefore,  in  actions  instituted  to  *en-  [  '*126  ] 
force  contracts  made  with  them,  must  all  join. 
This  principle  is  bottomed  on  practical  convenience,  to 
prevent  a  multiplicity  of  actions  in  a  case  in  which  the 
rights  of  the  parties  are  capable  of  adjustment  in  a  sin- 
gle suit:  indeed,  if  several  were  allowed  to  bring  sepa- 
rate actions  for  one  and  the  same  cause,  the  court  itself 
would  be  in  doubt  for  which  of  them  to  give  judgment.(/) 
It  may  also  be  beneficial  to  the  defendant  to  have  the 
action  brought  by  all  the  parties  interested,  for  he  may 
possibly  have  a  defence  against  them  all  which  may  not 
be  available  against  one  or  more  of  them.(m)  The  rule 
therefore  established  is,  that  all  those  who  are  alive 
must  join,  and  if  they  do  not,  the  plaintiflf  will  be  non- 
suited or  have  a  verdict  against  him.(n)  (1)    And  where 

trine  of  equitable  mortgage  by  deposit  has  been  refused  to  be  extended 
to  subsequent  advances  after  a  legal  mortgage.  Lord  Eldon  observed, 
that  there  never  was  a  case  where  a  man  having  taken  a  mortgage  by  a 
legal  conveyance  was  afterwards  permitted  to  liold  that  estate  as  further 
charged,  not  by  a  legal  contract,  but  by  inference  from  the  possession 
of  the  deed.  Ex -parte  Hooper,  19  Ves.  477.  1  Meriv.  7.  2  Rose,  328. 

[i)  Lambert's  case,  Godb.  244.  Cabell  u.  Vaughan,  1  P.  Wms. 
Saund.  291.  b.  (4). 

ik)  Webber  v.  Tivill,  2  Wms.  Saund.  122.  (1). 

(/)  Per  Lord  Kenyan,  Anderson  v.  Martindale,  1  East,  497.  See 
also  Slingsby's  case,  5  Rep.  18. 

(th)  Per  Baley,  J.,  Petrie  v.  Bury,  3  B.  &  C.  356. 

(n)  CabeU  v.  Vaughan,  1  Wms.  Saund.  291.  f.  1  Chitt.  Rep.  71. 
2  Stra.  820. 


(1)  Dob  v.  Halsey,  16  Johns.  Rep.  34.  Coffee  v.  Eastland,  Cooke's 
Rep.  159.  Wilson  v.  Wallace's  Ex.  8  Serg.  &i  Rawle,  .53.  The 
United  States  v.  Kennan,  1  Peters'  Rep.  168.  Halliday  v.  Doggelt 
et  al.  6  Pick.  Rep.  359.  And  actions  to  be  properly  brought,  must  be 
commenced  and  prosecuted  in  the  proper  Christian  and  Sir-names  of 
the  parties,  and  not  in  the  name  of  the  Company  or  firm.  Seely  v. 
Schenck  ^-  Denise,  Crandall  v.  Fr.  Denny  if  Co.  1  Penn.  Rep.  75, 
137.  Bently  et  al.  v.  Smith,  3  Caines'  Rep.  170,  (2d  edit.)  Burns  v. 
Hall,  2  Penn.  Rep.  984.     Tomlinson  v.  Burke  et  al.   5  Halst.  Rep. 


126  LEGAL  REMEDIES  FOR  PARTNERS 

A  declared  upon  an  account  stated  with  him  of  monies 
due  to  him  and  a  third  person,  after  verdict  judgment 
was  arrested,  on  the  ground  that  the  promise,  whether 
express  or  imphed,  must,  in  point  of  law,  be  considered 
as  made  lo  both  the  persons  whose  debt  it  was,  and 
therefore  they  ought  to  have  joined  in  the  action.(o)(l) 
The  same  principle  was  recognized  and  acted  upon  in  a 
late  case.(jo)  There  a  father  had  opened  a  bank,  appa- 
rently on  the  joint  account  of  himself  and  his  infant  son, 
in  whose  names  the  accounts  with  the  customers  were 
headed  in  the  banking  books ;  and  it  was  determined  by 
the  Court  of  King's  Bench,  that  the  father  could  not  sue 
alone  for  the  balance  of  an  account  overdrawn  by  a  cus- 
tomer of  the  house,  without  giving  distinct  proof  that 
the  son,  though  a  minor,  had  neither  property  in  the 
banking  fund,  nor  a  share  in  the  business  as  a  part- 
ner. And  it  has  been  ruled,  that  if  a  trader  have  a 
clerk  at   a   fixed   salary,  whom  he   holds   out   to   the 

(o)  7  Mod.  116.     Yelv.  177.     See  also  Vernon  v.  Jeffreys,  2  Stra. 
1146.     Garrett  v.  Handley,  3  B.  &  C.  462. 
(p)  Teed  t;.  Elworthy,  14  East,  210. 

295.  But  in  the  case  of  two  or  more  partners  of  the  same  sir-name, 
if  the  sir-name  be  not  added  to  every  eliristian  name,  it  is  not  error. 
Chance  v.  Chambers,  1  Penn.  Rep.  384.  In  Virginia,  however,  it 
has  been  decided,  that  a  declaration  in  behalf  of  a  mercantile  company, 
by  the  name  of  the  firm,  without  mentioning  the  names  of  the  part- 
ners, is  good  after  a  verdict  for  the  plaintiff  upon  the  general  issue. 
Pale  V.  Bacon  et  al  8  Munf.  219.  Totty's  Ex.  v.  Donald  ^'  Co.  4 
Munf.  430.  Barnet  v.  Watson,  1  Wash.  Rep.  372,  And  in  Penn- 
sylvania, in  an  action  on  a  single  bill,  declared  on  as  given  to  A.  B.  & 
Co.,  if  the  defendant  goes  to  trial  on  the  pleas  of  non  est  factum  and 
'■'■payment,''''  he  cannot  avail  himself  at  the  trial  of  the  objection,  that 
all  the  company  who  are  plaintiffs  are  not  named  in  the  writ.  Porter 
V.  Cresson  et  al.  10  Serg.  &  Rawle,  257.  As  to  whether  a  judgment 
by  default  could  be  sustained  against  a  mercantile  company — the  suit 
being  against  the  firm — if  the  names  of  the  partners  be  omitted  in  the 
writ  and  declaration,  see   Scott  tSf  Co.  v.  Dunlap  <^-  Co.  2  Munf.  349. 

(1)  But  where  a  debt  is  due  to  a  partnership,  which  is  afterwards 
dissolved,  and  the  debt  is  afterwards  assigned  to  one  of  the  partners,  it 
is  competent  for  such  partner  to  maintain  an  action  in  his  own  name 
for  the  debt,  by  proving  that  the  debtor,  with  a  knowledge  of  such  as- 
signment, promised  to  pay  it ;  and  such  a  promise  may  be  implied  from 
the  acts  of  the  debtor,  as  well  as  expressly  proved.  Barger  v.  Collhis, 
7  Harr.  &  Johns.  213. 


AGAINST  STRANGERS.  126 

world  as  a  partner,  an  action  upon  a  bill  of  exchange, 
drawn   in  the   name  of  the   trader  and  clerk,  cannot 
be   maintained   by  the   trader   3i\one.(q)      So, 
*where,  at  the  time  of  forming  a  joint  stock  [  *127  ] 
company,  the  names  of  the  plaintiffs  were  enter- 
ed in  a  book  as  original  subscribers,  and  scrip  receipts 
issued  by  the  directors,  which  they  afterwards  sold  be- 
fore the  company's  deed  was  executed,  and  which  was 
never  signed  by  the  plaintiffs,  it  was  held,  that  they 
must  still  be  deemed  partners  in  the  concern,  and  could 
not  therefore  recover  on  a  note  by  the  defendant,  paya- 
ble to  themselves  on  account  of  the  company. (r)     The 
existence  of  this  rule  was  acknowledged,  and  the  reason 
of  it  admirably  explained,  by  Lord  C.  J.  Eyre,  in  his 
elaborate  judgment  in  the  case  of  Scott  v.  Godwin  :(s) 
"There  is,"  said  that  learned  judge,  " an  essential  differ- 
ence between  the  cases,  where  the  objection  is  that  other 
persons  ought  to  be  made  co-defendants,  and  where  it  is 
that  there  are  not  the  proper  parties  plaintiffs  in  the  suit. 
Many  plaintiffs  can  have  but  one  right,  having  but  one 
interest,  and  one  cause  of  action,  which  ought  to  be, 
and  is,  indivisible,  admitting  of  but  one  satisfaction.  But 
if  in  the  nature  of  the  thing,  if  on  principles  of  law  or 
authorities,  it  could  be  that  a  man  should  derive  a  seve- 
ral interest  out  of  a  joint  obligation  to  himself  and  others, 
and  that  plaintiffs  could  sue  separately  for  their  por- 
tions of  one  right,  it  is  most  obvious  that  it  must  vex 
and  harass  defendants  extremely.  I  take  it  to  have  been 
solemnly  adjudged  in  several  cases,  and  to  be  the  known 
received  law,  that  one  co-covenantce,  one  co-obligee,  or 
one  joint  contractor  by  parol,  cannot  sue  alone ;(/)  a 
breach  of  a  joint  contract  with  two  or  more  cannot  be 
joint  and  several.     In  the  last  case  it  is  common  expe- 
rience, that  where  a  joint  contract  appears  in  evidence 

(q)  Guidon  v.  Robson,  2  Carapb.  302, 

(?•)  Perring  v.  Hone,  4  Bingh.  20. 

(s)  1  Bos.  &  Pul.  67.  See  also  Nathan  v.  Buckland,  2  B.  Moore, 
153. 

(/)  SUngsbyls  case,  5  Rep.  18.  Where  a  covenant  is  made  witli 
three  persons,  and  one  only  seals  the  deed,  but  the  others  do  not  ex- 
pressly dissent  to  it,  an  action  cannot  be  sustained  upon  the  covenant 
by  that  one  alone.     Petrie  v.  Bury,  3  B.  &  C  3.53. 


127  LEGAL    REMEDIES    FOR    PARTNERS 

on  the  general  issue,  the  plaintiff  is  nonsuited ;  and  there 
are  many  cases  in  the  books,  in  which  it  has  been  held 
to  be  error,  for  one  co-obligee,  or  one  co-covenantee  to 
sue  alone."  Nor  is  it  a  sufficient  answer  to  the  objec- 
tion, arising  from  a  non-joinder  of  parties,  that  the 
partner  omitted  is  either  bankrupt  or  an  infant.  If  a 
bankrupt,  the  solvent  partner  must  sue  jointly  with  his 
assignees,  upon  whom,  by  law,  the  interest  of  the  bank- 
rupt partner  in  all  contracts  devolves  :(ii)  (1)  in 
[  *128  ]  such  a  case,  where  the  action  brought  *in  the 
names  of  all  the  partners,  the  bankruptcy  of  the 
one  might  be  pleaded  in  bar.(tj)  (2)  And  if  the  partner 
omitted  be  an  infant,  his  minority  forms  no  excuse  for 
his  not  being  joined;  for  he,  as  well  as  an  adult,  falls 
equally  within  the  rule,  requiring  all  those  who  are  le- 
gally interested  in  the  subject  matter  of  the  action  to 
join  as  plaintiffs.(z^;)  But  with  respect  to  dormant  part- 
ners, it  seems  to  have  been  considered,  that  an  action  on 
a  contract  may  be  maintained  either  in  the  name  of  the 
persons  with  whom  the  contract  was  actually  made,  or 
in  the  name  of  the  parties  really  interested.  Therefore 
a  dormant  partner  may  join  in  an  action  instituted  by 
the  firm,  as  being  one  of  the  parties  really  interested  in 
the  suit,(a;)  but  his  nonjoinder  does  not  appear  to  be 
a  ground  of  nonsuit,  or  to  be  objectionable  in  any 
way.(^)  (3)     Thus,  if  the  ostensible  proprietor  of  mate- 

(w)  Thomason  v.  Frere,  10  East,  418. 

{v)  Eckhardt  v.  Wilson,  8  T.  R.  140.  12  Mod.  446. 

(w)  Teed  v.  El  worthy,  14  East,  211 ;  and  see  the  cases  there  cited 
by  Mr.  Topping  in  argument. 

{x)  Skinner  v.  Stocks,  4  B.  &  A.  427.  See  Steel  v.  Western,  7  B. 
Moore,  31.  ' 

{y)  Lloyd  v.  Archbowle,  2  Taunt.  324. ;  and  see  Brassington  v. 
Ault,  2  Bingh.  177. 


(1)  Per  Kent,  Chancellor.  Murray  v.  Murray,  5  Johns.  Cha. 
Rep.  70. 

(2)  The  Court  were  equally  divided  upon  the  question,  in  the  case 
of  Bird  et  al.  v.  Pierpont,  1  Johns.  Rep.  118.  Foreign  assignees  can- 
not sue  in  their  own  names  ;  they  must  use  the  name  of  the  foreign 
bankrupt.     Bird  et  al.  v.  Caritat,  2  Johns.  Rep.  342. 

(3)  Per  Duncan,  J.,  Wilson  v.  Wallace'' s  Ex.  8  Serg.  &  Rawle,  55. 


AGAINST    STRANGERS.  128 

rials  enter  into  a  contract  for  work  to  be  done  thereon, 
it  is  not  necessary  that,  in  an  action  brought  on  the 
contract,  another,  who  has  secretly  purchased  a  share 
of  him,  but  is  no  party  to  the  contract,  should  be  joined 
as  a  co-plaintifr.(z)  (1)  So,  where  two  brought  an  action 
as  partners  (with  whom  the  defendant  had  dealt,)  and  at 
the  trial  it  appeared  that,  at  the  time  of  the  contract,  a 
third  person,  not  joined,  was  a  dormant  partner,  and  that 
he  had  since  withdrawn  from  the  firm.  Lord  Kenyan 
refused  to  nonsuit  the  plaintiffs.(a)  However,  if  a  dor- 
mant partner  join,  it  does  not  form  any  objection  at  the 
trial,  that  the  defendant  is  thereby  deprived  of  his  right 
of  set  off  against  the  ostensible  partners,  because  the 
statutes  of  set-off  do  not  prevent  the  action  from  being 
maintainable  in  the  names  of  all  the  parties  interested. 
If  the  introduction  of  the  dormant  partner,  as  a  plaintiff, 
make  any  diflference  in  fact  to  the  defendant,  by  affect- 
ing his  right  of  set-off,  the  court  in  which  the  action  is 
commenced  would,  perhaps,  on  application,  grant  him 
relief.(6)  Neither  is  it  requisite  to  the  maintenance  of 
an  action  commenced  by  the  real  members 
of  a  firm,  that  a  nominal  member  ^should  be  [*r29] 
joined,  if  it  be  made  to  appear  that  he  has  no 
interest  as  a  partner  :(c)  (2)  for,  although,  as  against 
creditors,  a  nominal  partner  is  to  be  considered  bona 
fide  a  partner,  yet  that  is  not  the  case  with  respect  to 

Iz)  Mawman  v.  Gillett,  2  Taunt.  325.  n. 

[a)  Leveck  v.  Shaftoe,  2  Esp.  N.  P.  C.  468. 

(6)  Skinner  v.  Stocks,  supra. 

(c)  Harrison  v.  Fitzhenry,  3  Esp.  N.  P.  C.  238. 


Mitchell  V.  Doll,  2  Harr.  &  Gill  159.  Clarkson  v.  Carter^  3  Cow. 
Rep.  85.  6  Pick.  Rep.  352.  Clark  v.  Miller,  4  Wend.  Rep.  628. 
Boardman  v.  Keeler,  2  Verm.  Rep.  65. 

(1)  Barstow  v.  Gray,  3  Greenl.  Rep.  409. 

(2)  Bernard  v.  Wilcox,  2  Johns.  Ca.  374,  is  to  be  supported  upon 
the  principle  stated  in  the  text,  as  will  be  readily  perceived  by  attending 
to  the  facts  of  the  case.  The  two  cases  cited  by  Ch.  Justice  Lewis,  in 
his  opinion,  delivered  as  that  of  the  court,  will  be  found  upon  reference 
to  them,  to  have  no  bearing  upon  the  question  before  the  court;  and  the 
legal  result  of  both  is  most  incorrectly  stated.  The  reporter's  marginal 
abstract  is  also  incorrect,  being  a  mere  repetition  of  the  two  general 
principles  stated  by  the  Chief  Justice. 


129  LEGAL    REMEDIES    FOR    PARTNERS 

debtors.(d')  Therefore,  where  an  action  was  brought 
by  a  father,  whose  son's  name  was  introduced  into  the 
business  as  a  co-partner,  on  an  objection  that  the  father 
could  not  sue  alone,  it  was  held  that  the  son  might  be 
called  to  show  that  he  had  no  interest,  and  consequently 
that  the  action  was  rightly  brought  in  the  name  of  the 
father  only.(e)  (1)  And  in  a  late  case  it  is  stated  to 
have  been  held,  that  an  ostensible  partner,  who  is  proved 
not  to  be  a  bona  fide  partner,  need  not  join  in  an  action 
on  a  contract  with  the  supposed  firm.(y') 

Although  the  cause  of  action  be  originally  joint,  the 
party  himself  who  contracts  with  the  firm  may,  by  his 
own  acts,  render  it  so  far  separate  as  to  entitle  a  single 
member  to  sue  alone.  Thus,  where  three  persons  em- 
ployed the  defendant  to  sell  some  timber  for  them,  in 
which  they  were  jointly  interested,  and  the  defendant 
paid  to  two  of  them  their  proportionate  shares,  and  took 
receipts,  it  was  objected,  on  an  action  being  brought  by 
the  third  party  for  his  share,  that  as  the  employment  was 
a  joint  employment  by  three,  one  alone  could  not  bring 
his  action ;  but  Lord  Mansfield  ruled  that  where  there 
had  been  a  severance  one  alone  might  sue.(^)  (2)  So 
where  the  action  was  for  the  use  and  occupation  of  a 
house,  and  it  appeared  that  the  house  was  the  property 
of  six  several  tenants  in  common,  to  all  of  whom,  except 
the  plaintiff,  the  defendant  had  paid  his  rent,  and  the 
action  was  for  his  share  of  the  whole  rent ;  it  was  ob- 
jected that  one  tenant  in  common  alone  could  not  bring 

{d)  Ex  parte  Alexander,  1  Glyn.  &  James,  409. 

(e)  Parsons  v.  Crosby,  5  Esp.  N.  P.  C.  199.  See  also  Teed  v.  El- 
worthy,  14  East,  210.  Page  v.  Hiscox,  cited  Ibid.  arg.  Glossop  v. 
Colman,  1  Stark.  N.  P.  C.  25. 

(/)  Davenport  v.  Rackstraw,  1  Carr.  &  Pay.  89. 

[g)  Garret  v.  Taylor,  1  Esp.  N.  P.  144.  See  also  Judgment  of 
Lawrence,  J.  in  Sedgworth  v.  Overend,  7  T.  R.  279. 


(1)  Atkinson  v.  Laing,  Dow.  &  Ryl.  N.  P.  C.  16. 

(2)  See  Austin  v.  Walsh,  2  Mass.  Rep.  401.  Bunn  et  al.  v. 
Morris  et  al.  3  Gaines'  Rep.  54.  Blair  v.  Snover,  5  Halst.  Rep.  153. 
There  was,  however,  in  these  cases  an  express  promise.  See  Baker 
V.  Jewell,  6  Mass.  Rep.  460. 


AGAINST  STRANGERS.  129 

this  action,  that  all  ought,  to  join;  but  Lord  Mansfield 
overruled  the  objection,  and  the  plaintiff  recovered.(/t) 
And  the  general  rule  applies  only  where  t'le  object  of  the 
partners  in  suing  is  the  enforcement  of  an  original  debt  or 
duty  to  the  firm ;  for  if,  by  any  subsequent  arrangement 
with  the  debtor,  the  nature  of  the  debt  or  duty  is 
changed,  and  a  new  and  independent  cause  of 
action,  in  respect  of  it,  accrues  to  an  ^individual  [  *130  ] 
partner,  he  alone  can  enforce  it.  Therefore, 
where  one  partner,  in  the  name  of  himself  and  his  co- 
partner executed  a  deed  of  composition,  whereby,  in 
respect  of  a  partnership  debt,  he  agreed  to  take  from 
the  debtor  a  stipulated  composition,  and  the  defendant 
covenanted  to  pay  the  amount  of  the  composition  by 
instalments  to  the  parties  to  the  deed,  or  to  their  res- 
pective partners;  in  an  action  of  covenant  for  non- 
payment of  an  instalment  by  the  partner  alone  who 
subscribed  the  deed,  to  which  the  defendant  demurred, 
the  court  held  that  the  action  was  properly  brought,  for 
the  right  of  action  being  constituted  by  the  deed,  and 
the  other  partner  not  being  a  party  to  it,  he  could  not  in 
joint  covenant. (i)  So,  a  dcclaraton  of  the  acting  partner, 
made  contemporaneously  with  the  formation  of  a  con- 
tract, being  evidence  against  all  the  partners,  may  disable 
them  from  jointly  asserting  a  right  Avhich  ought,  in  re- 
ality, to  have  accrued  to  them  in  a  collective  character. 
Therefore,  were  a  contract  was  made  by  one  of  several 
partners,  in  his  individual  capacity,  who  at  the  time, 
declared  that  the  subject-matter  of  the  contract  was  his 
property  alone,  it  was  held  that  the  partners  could  not 
sue  jointly  upon  'ii.{k)  (1)     Where,  in  an  action  of  eject- 

(/*,)  Kirkham  v.  Newstead,  1  Esp.  N.  P.  145. 

(i)  Metcalf  v.  Rycroft.  6  Mau.  &;  Selw.  75.  See  Petrie  v.  Bury, 
3  B.  &  C.  353.  In  Biggs  v.  Fellows,  2  Mann.  &l  Ryl.  453.,  Holroyd 
J.  said,  "  One  partner  may  take  a  security  for  both  in  his  own  name, 
and  he  will  be  a  trustee."  . 

{k)  Lucas  V.  Delacour,  l  Maul.  &  Selw.  249. 


(1)  So  if  two  joint  owners  of  merchandise  consign  it  to  a  merchant 
for  sale,  and  inform  him  that  each  owns  one  moiety,  and  they  give 
separate  and  variant  instructions,  each  for  his  own  moiety,  one  of  the 

23 


130  LEGAL  REMEDIES  FOR  PARTNERS 

ment,  it  appeared  that  A  demised  but  that  he  gave 
receipts  for  the  rent  in  his  own  name  and  those  of  B 
and  C,  his  partners,  it  was  held  that  a  new  tenancy  was 
not  thereby  created,  but  that  A  might  recover  on  a  de- 
mise stated  to  have  been  made  by  himself  alone. (/) 

A  misjoinder,  or  the  joinder  of  more  persons  in  an 
action  than  those  with  whom  the  contract  was  actually 
made,  is  as  objectionable  as  a  nonjoinder,  the  rule  of  law 
upon  this  subject  requiring  that  all,  but  no  more  than  the 
parties  really  interested  in  the  contract  at  the  time  it 
w^as  entered  into,  should  join.  Therefore,  if  one  of  two 
attorneys  in  partnership  is  appointed,  and  singly  act  as 
replevin  clerk  to  a  sheriff,  he  alone  can  maintain  an 
action  for  the  expense  of  preparing  a  replevin  bond, 
although  the  bond  was  executed  in  the  office  where  the 
attorneys  carried  on  their  joint  business ;  and  if  his  co- 
partner join  with  him  in  the  action,  they  will  be  non- 

suited.(m)  So  if  a  firm  admit  a  new  member 
[*131  ]  upon  an  agreement  *that  he  shall  be  deemed  a 

partner  from  a  previous  day,  an  action  for  a 
partnership  debt,  contracted  before  the  day  when  the 
new  member  was  actually  admitted,  must  be  brought  in 
the  name  of  the  old  firm ;  and  if  the  new  member  be 
joined,  a  nonsuit  will  be  the  consequence,  since  with  him 
there  was  not  any  contract.(n) 

The  joinder  of  all  the  parties,  to  whom  the  cause  of 
action  accrued,  may  be  rendered  impossible,  by  the  sub- 
sequent death  of  one  or  more  of  the  partners.  In  such 
a  case  the  legal  remedy  to  recover  damages  for  the 
breach  of  a  contract,  or  to  enforce  payment  of  a  debt, 
vests  in  the  surviving  partners,  and  not  in  them  jointly 
with  the  executors  or  administrators  of  the  deceased 

(/)  Doe  V.  Baker,  2  B.  Moore,  189. 

(m)  Brandon  v.  Hubbard,  4  B.  Moore,  367.  S.  C.  2  Brod.  & 
Bing.  11. 

(n)  Wilsford  v.  Wood,  1  Esp.  N.  P.  C.  182.  See  also  Osborne  v. 
Harper,  5  East,  225. 


consignors  alone  may  maintain  a  separate  action  against  the  consignee 
for  a  violation  of  his  separate  instruction.  Hall  v.  Leigh  et  al.  8 
Cranch,  51. 


AGAINST  STRANGERS.  131 

partner.(o)(l)  And  although  the  right  of  action  which, 
in  such  an  event,  is  transferred  to  the  survivors,  is  to  be 
exercised  not  only  for  the  benefit  of  themselves,  but  like- 
wise for  that  of  the  representatives  of  the  deceased,  yet 
the  executor  or  administrator  of  the  latter  must  resort  to 
a  court  of  equity  to  obtain  from  the  survivor  the  testa- 
tor's share  of  the  sum  recovered,  since  at  law  the  claim 
cannot  be  effectually  enforced.(2)  Formerly  it  was  con- 
sidered that  a  surviving  partner  might  declare  generally 
upon  a  contract  entered  into  with  him  and  his  deceased 
partner,  as  upon  a  contract  made  with  himself  alone ;(/?) 
but  the  rule  is  now  different.  For,  as  it  would  be  a  va- 
riance and  a  good  defence  upon  the  general  issue,  were 
one  of  two  joint  contractors  to  sue,  both  being  alive,  so 
it  seems  to  be  reasonable,  that  where  a  surviving  joint 
contractor  sues,  the  fact  of  his  being  survivor 
should  appear  in  the  declaration.(y)(3)     *But  [*132] 

(o)  Anderson  v.  Martindale,  1  East,  497.  Martin  v.  Crompe,  1  Ld. 
Raym.  340.  S.  C.  1  Show.  189.  Com.  Dig.  Tit.  Merchant  (D). 
Vin.  Abr.  Tit.  Partner  (D). 

(p)  Ditchburn  v.  Spracklin,  5  Esp.  N.  P.  C.  51. 

{q)  Jell  V.  Douglas,  4  B.  &  A.  374.  Webber  v.  Tivill,  2  Wma. 
Saund.  121,  n.  1.  Israel  v.  Simmons,  2  Stark.  N.  P.  C.  356.  Fitz- 
gerald V.  Boehm,  6  B.  Moore,  332.  A  distinction  subsists  between 
cases  of  express  contract,  for  instance  a  sale  of  goods  by  a  firm,  and  the 
contract  which  the  law  implies  in  favour  of  partners  who  are  the  indor- 


(1)  Peters  V.  Davis,  7  Mass.  Rep.  2.57.  Wallace  v.  Fitzsimons,  1 
Dall.  248.  McCarly  v.  Nixon,  2  Dall.  65,  n.  See  McJilister  v. 
Montgomery,  3  Hayw.  Rep.  {Tenn.)  96.  5  Serg.  &  Rawle,  86. 
Barney  v.  Smith,  4  Harr  &l  Johns.  485. 

(2)  5  Serg.  &  Rawle,  86.  6  Cow.  Rep.  443.  "  Though,  in  some 
cases  of  partnership,  the  right  of  liability  may  beneficially  serve  for  or 
against  the  executors  of  the  deceased  partner,  yet,  at  law,  the  legal 
right  and  liabditv  entirely  survive  against  and  for  the  surviving  part- 
ners, who  alone  can  at  law  sue  and  be  sued."  Per  curiam,  Golding 
V.  Vaughan,  2  Chitt.  Rep.  437.  And  the  surviving  partner  may  main- 
tain detinue  against  the  representative  of  the  deceased  partner,  for  the 
books  of  account,  and  other  evidences  of  debt  belonging  to  the  co-part- 
nership, although  the  partnership  were  dissolved  by  mutual  consent 
during  the  lifetime  of  the  deceased  partner.  Murray  v.  Mumford,  6 
Cow.  Rep.  441.  Smyth  v.  Haivthorn,  3  Rawle,  355.  See  Egbert  v. 
Woods,  3  Paige's  Cha.  Rep.  517. 

(3)  Holmes  et  al  v.  De  Camp,  1  Johns.  Rep.  34.  But  where  one 
of  several  partners  dies,  and  the  survivors  continue  to  trade  \inder  the 


132 


LEGAL  REMEDIES   FOR   PARTNERS 


in  an  action  at  the  suit  of  a  surviving  partner,  he 
may  inchide  a  count  for  a  debt  due  to  himself  in  his 
ovi^n  right.(r)(l)  And  where  money  is  owing  to  two 
partners,  and  after  the  death  of  one  it  is  paid  to  a  third 
person,  the  survivor  may  maintain  an  action  for  money 
had  and  received  to  his  use.(s)  On  the  death  of  the  last 
surviving  partner  his  executor  or  administrator  alone  can 

sees  in  blank  of  a  bill  of  exchange.  In  the  former  case,  if  one  of  the 
members  of  the  firm  die  subsequently  to  the  making  of  the  contract,  it 
is  necessary  that  that  fact  should  be  stated  in  the  declaration,  because 
the  gist  of  the  action  is  founded  on  a  previous  contract,  and  another 
cannot  be  implied.  But  where  a  bill  of  exchange  is  indorsed  in  blank 
to  a  firm  it  becomes  transferable  by  delivery,  and  in  case  one  partner 
dies  or  withdraws  from  the  firm,  the  others  become  the  holders  of  such 
an  instrument  in  point  of  law,  and  it  is  quite  clear  that  they  may  sue  in 
their  own  right  as  indorsees,  as  it  is  not  incumbent  on  them  to  prove 
their  joint  title  to  sue  on  the  bill  by  showing  that  they  were  partners  at 
the  time  of  such  indorsement,  or  by  proving  a  transfer  to  them  jointly. 
If,  however,  a  bill  of  exchange  be  indorsed  specially  to  a  firm,  the  same 
rule  applies,  in  the  event  of  the  death  of  a  partner,  which  governs  cases 
of  express  contract.  See  Attwood  v.  Rattenbury,  6  B.  Moore,  579. 
Ord  V.  Portal,  3  Camb.  239.  .  Rordasnz  v.  Leach,  1  Stark.  N.  P.  C. 
446.  (r)  3  T.  R.  443.    5  T.  R.  493.    6  T.  R.  532. 

(s)  Smith  V.  Barrow,  2  T.  R.  476. 


co-partnership  name,  and  an  account  is  stated  afterwards,  by  a  debtor, 
admitting  a  balance  due  by  him,  for  goods  sold  in  the  lifetime  of  the 
deceased,  the  surviving  partners  may  recover  such  balance  on  an  insi- 
mul  computus  sent,  without  stating  the  death  of  the  other  partner — the 
stating  of  the  account  is  in  the  nature  of  a  new  promise  to  the  survivors. 
Jbid.  Where  plaintiffs  issued  a  writ  against  a  defendant  in  their  own 
names,  and  declared  in  their  own  right,  but  described  themselves  in  the 
affidavit  to  hold  to  bail  as  surviving  partners,  the  variance  was  held  to 
be  fatal ;  and  the  Court  ordered  the  bail  bond  to  be  cancelled,  and  re- 
fused to  permit  the  plaintifl^s  to  amend  their  writ  and  declaration,  on 
payment  of  costs,  Atwood  et  al  v.  Rattenbury,  6  Moore's  Rep.  209. 
But  where  the  plaintiffs  commenced  an  action  against  the  defendants  as 
administratrixes,  and  the  pleas  were,  the  statute  of  limitations,  and  that 
the  plaintiffs  were  not  administratrixes  of  the  deceased  at  the  time  of 
the  commencement  of  the  suit,  and  the  letters  of  administration  were 
not  taken  out  till  after  the  action  was  brought,  and  the  statute  of  limita- 
tions would  have  been  a  bar  to  a  new  action,  the  plaintiflis  being  survi- 
ving partners  as  well  as  administratrixes  of  the  deceased,  the  Court  al- 
lowed the  writ  and  declaration  to  be  amended  by  describing  them  in 
their  former  character,  on  payment  of  costs  by  the  plaintiffs,  and  allow- 
ing the  defendants  to  plead  de  novo.  Taylor  et  al.  Mm.  v.  Lyon,  2 
Moo.  &  Payne's  Rep.  586. 

i^\)   Stafford  V.  Gold,  9Vick.Tle.i>.  533. 


AGAINST  STRANGERS.  132 

sue,  and  the  personal  representatives  of  the  partner  who 
first  died  ought  not  to  be  joined.(l) 

We  have  before  stated  that  pubhc  companies,  not  in- 
corporated, are  considered  in  the  nature  of  ordinary  part- 
nerships, and  consequently  the  rules  and  doctrines  v^^hich 
regulate  the  Joinder  of  parties  in  an  action  brought  by 
the  one,  must  apply  with  equal  force  to  the  other.  When, 
^therefore,  such  a  company  sues  for  the  recovery  of  its 
rights,  the  adverse  party  may,  generally  speaking,  avail 
himself  of  the  objection,  that  there  are  many  members 
who  are  not  joined  as  plaintiffs,  in  the  same  manner  as 
a  defendant,  in  an  action  instituted  by  a  common  part- 
nership, may  do.(^)     The  general  rule   in   both  cases 
must  be  the  same ;  but  inasmuch  as  companions  would 
constantly  be  exposed  to  great  difficulty  in  establishing 
their  rights,  if  it  were  incumbent  upon  them  to  join  all 
the  members  in  a  suit,  they  are  in  most  instances,  either 
by  their  own  compact,  or  by  the  act  of  the  legislature, 
relieved  from  the  necessity  of  doing  so.     Thus,  on  the 
formation  of  a  company,  the  adventurers  in  it  may,  as  it 
seems,  lawfully  stipulate  that  two  of  them  only  shall 
carry  on  the  projected  trade,  and  that  all  actions  on  the 
behalf  of  the  company  shall  be  brought  in  their  names. 
Such  a  stipulation  will  confer  upon  the  parties  nomina- 
ted the  right  of  suing  as  nominal  plaintiffs,  but  a  subse- 
quent alteration  in  the  original  stipulation,  made  with- 
out the  consent  of  all  the  members  of  the  company,  will 
not  enable  any  one  member  alone  to  bring  actions  on 
the  behalf  of  the  company. (m)( 2)     And  where  the  for- 
mation of  the  company  is  authorised  by  an  act 
of  *parliament,  the  legislature,  in  giving  its  sane-  [  *133  ] 
tion,  invariably  remedies  the  inconvenience  that 
may  arise  in  recovering  debts  due  to  the  company,  by 

{I)  See  Cousins  v.  Smith,  13  Ves.  542. 

(u)  Davies  v.  Hawkins,  3  Man.  &  Selw.  433.  In  the  case  of  Raden- 
hurst  V.  Bates.  3  Bingh.  403.,  it  was  said  that  the  members  of  a  firm 
cannot,  by  agreement,  give  an  authority  to  any  one  of  them  to  bring  an 
action  in  his  name  against  persons  not  members  of  the  firm. 


(1)  Per  Story  J.,  Childress  v.  Emory,  8  Wheat.  669. 

(2)  Livingston  v.  Lynch,  4  Johns.  Cha.  Rep.  673. 


133  LEGAL  REMEDIES    FOR  PARTNERS 

enabling  them  to  sue  in  the  name  of  their  secretary  for 
the  time  being,  and  in  such  a  case  it  will  of  course  suf- 
fice if  the  course  prescribed  be  adopted.  But  as  such 
acts  of  parliament  are  in  effect  private  acts,  and  as  they 
give  to  individuals  certain  powers  over  others,  they  must 
be  construed  strictly ;  and  therefore  if  it  be  intended  to 
extend  the  remedy  beyond  suits,  the  parties  who  bring 
in  the  act  should  be  careful  to  use  such  language  as 
plainly  includes  all  the  cases  to  which  they  mean  it  to 
apply,  for  a  court  of  law  will  not  go  beyond  the  words 
of  an  act  unless  the  meaning  of  the  legislature  very 
clearly  justifies  it  in  doing  so.  Therefore,  where  a  pri- 
vate act  of  parliament,  entitled  "  An  act  to  enable  a  cer- 
tain Insurance  Society  to  sue  and  be  sued  in  the  name 
of  their  secretary,"  enacted  that  they  might  commence 
all  actions  and  suits  in  his  name  as  nominal  plaintiff*;  it 
was  held,  that  this  did  not  enable  the  secretary  to  peti- 
tion, on  the  behalf  of  the  society,  for  a  commission  of 
bankruptcy  against  their  debtor.(?;) 

Actions  ex  delicto^  or  actions  arising  out  of  some 
wrongful  injury  committed  by  a  stranger  affecting  part- 
nership property,  are  of  less  frequent  occurrence  than 
those  which  result  from  a  breach  of  contract.  The  rule, 
however,  which  in  actions  on  contracts  requires  the 
joinder  of  all  the  parties,  appears  to  be  equally  applicable' 
to  actions  founded  upon  a  tort ;  although,  as  will  be  seen 
hereafter,  it  is  less  rigidly  enforced.  It  is  laid  down,  as 
clearly  established  law,  that  for  an  injury  to  the  joint 
property  all  the  parties  ought  to  join  ',{w)  but,  if  too 
many  persons  be  made  co-plaintiffs,  the  objection,  if  it 
appear  on  the  record,  may  be  taken  advantage  of  either 
by  demurrer,  in  arrest  of  judgment,  or  by  writ  of  er- 
ror ;(.r)  and,  if  the  objection  do  not  appear  on  the  face 
of  the  pleadings,  it  will  be  a  ground  of  nonsuit  at  the 
trial.     If  one  or  more  of  the  partners  die  after  the  injury 

(v)  Guthrie  v.  Fisk,  3  B.  &  C.  178.  And  see  Ex  parte  Guthrie,  1 
Glyn  &  James,  245. 

{iv)  Bac.  Abr.  Tit.  Joint  Tenant,  (K).  Sedgworth  v.  Overend,  7  T.  R. 
R.  279.    Co.  Litt.  198.  a.    Bloxam  v.  Hubbard,  5  East,  407. 

(a?)  Cook  V.  Batchellor,  3  Bos.  &  Pul.  150.  Coryton  v.  Lithebye, 
2  Wms.  Saund.  116.  a.     Cro.  Eliz.  473. 


AGAINST  STRANGERS.  133 

is  committed,  the  action  must  be  brought  in  the  name  of 
the  survivor,  and  the  executor  or  administrator  of  the 
deceased  cannot  be  joined,  nor  can  he  sue  sepa- 
rately; and  therefore,  to  *an  action  of  trover  [*  134  ] 
brought  by  the  survivor  of  three  partners'  in 
trade,  it  cannot  be  objected  that  the  two  deceased  part- 
ners and  the  plaintiff'  were  joint  merchants,  and  conse- 
quently that,  in  respect  of  the  lex  mcrcatoria,  the  right 
of  survivorship  did  not  exist ;  for  the  legal  right  of  ac- 
tion survives,  though  the  beneficial  interest  does  not.(y) 
It  remains  now  to  be  inquired,  what  are  the  conse- 
quences of  a  non-joinder  of  the  parties,  in  relation  either 
to  an  action  ex  contractu,  or  an  action  ex  delicto,  and  in 
what  manner,  in  each  case,  advantage  is  to  be  taken  of 
it  by  a  defendant.  Where  the  right  of  action  is  joint,  as 
founded  on  a  joint  contract,  the  objection  that  the  action 
is  brought  by  one  of  several  parties,  who  ought  to  have 
sued  jointly,  may  be  made  available,  either  by  demurrer, 
or  on  motion  in  arrest  of  judgment,  or  by  writ  of  error,  if 
it  appear  on  the  record;  and,  though  the  objection  do  not 
appear  on  the  pleadings,  yet,  if  the  contract  is  alleged 
as  several,  the  defendant  may  plead  in  abatement,  or 
may  avail  himself  of  the  nonjoinder  at  the  trial,  as  a 
ground  of  nonsuit  upon  the  plea  of  the  general  is- 
sue.(^)  (1)  In  the  event  of  a  death,  the  declaration  by 
one  partner  must  show  the  death  of  the  other,  which 


y')  Kemp  V.  Andrews,  Carth.  170.  S.  C.  3  Lev.  290.  1  Show.  188. 
z)  1  Chit,  on  Plead.  7- 


(1)  Jordan  v.  Wilkins,  3  Wash  C.  C.  Rep.  110.  In  Baker  v.  Jew- 
ell, 6  Mass.  Rep.  460,  Chief  Justice  Parsons  said,  "  the  want  of  the 
proper  plaintiffs  in  actions  on  contiact,  is  an  exception  to  the  merits, 
and  is  to  be  taken  advantage  of,  either  on  demurrer,  or  on  the  general 
issue,  bnt  not  by  plea  in  abatement," — and  in  Zelic  et  at.  v.  CampljelVs 
Ex.  2  Johns.  Ca.  383,  Kext,  C.  J.  stated  the  rule  applicable  to  all 
joint  contracts,  as  well  as  to  those  arising  particularly  from  mercantile 
partnerships,  to  be  "  that  if  all  who  ought  to  be  plaintiffs  are  not  joined, 
it  is  ground  for  a  non  suit ;  if  any  are  omitted  as  defendants,  it  is  only 
in  abatement."  See  Dob  v.  Balsei/,  16  Johns.  Rep.  34.  8  Serg.  & 
Rawle,  55.  Halliday  v.  Doggett  'et  al.  6  Pick.  Rep.  359.  Lepage  v. 
McCrea,  1  Wend.  Rep.  164.  Coffee  v.  Easton,  Cooke'rf  Rep.  ^159. 
Kinsman  v.  Dallam,  5  Monroe's  Rep.  384. 


134  LEGAL  REMEDIES  FOR  PARTNERS 

cannot  be  presumed.(a)  And  if  an  action  is  brought 
by  the  executors  of  the  survivor,  it  is  necessary  to  aver 
that  their  testator  survived  the  others ;  it  not  being  re- 
quisite, as  it  is  in  the  case  of  persons  jointly  hable,  that 
the  exception  should  be  taken  by  plea  in  abatement.  In 
this,  however,  there  seems  some  incongruity ;  and  Mr. 
Serjeant  Williams,  in  a  note(&)  to  his  very  valuable  edi- 
tion of  Saimder's  Reports,  at  the  same  time  that  he  has 
admitted  the  rule  to  prevail,  has  observed,  that  "  as  to 
assumpsit  by  one  only,  at  the  time  when  most  of  the 
cases  upon  this  subject  were  decided,  the  same  rule  ex- 
tended as  well  to  defendants  as  to  plaintiffs.  The  rule 
in  both  cases  was  founded  upon  the  same  reason,  that 
the  contract  proved  was  not  the  same  with  that  in  the 
declaration.(c)  But  as  soon  as  it  was  decided,  in  the 
case  of  Rice  v.  Shute,(d)  and  the  other  cases  which 

followed  it,  that  leaving  out  one  of  the  joint  con- 
[*  135  ]  *tractors  did  not  vary  the  contract,  one  would 

have  thought  that  the  same  principle  would  be 
applied  to  the  case  of  persons  with  whom  the  contract 
was  made.  If  the  contract  be  still  the  same,  notwith- 
standing one  of  the  persons,  who  ought  to  be  joined,  is 
omitted,  upon  what  principle  is  it  that  the  contract  is 
not  the  same,  if  one  of  the  persons  who  ought  to  join 
be  omitted  ?  Perhaps  it  may  be  objected,  that,  by  this 
means,  the  plaintiff  and  the  defendant  are  not  upon 
equal  terms ;  that  in  an  action  against  one  only,  he  ne- 
cessarily knows  all  the  persons  liable  ;  but  in  actions  hj 
one  only,  the  defendant  may  often  not  know,  nor  be  able 
to  know,  what  persons  ought  to  join.  But,  in  answer  to 
this,  it  should  always  be  remembered  that  the  rule  is 
founded  upon  the  supposed  variance  between  the  contract 
proved  and  the  contract  laid,  and  not  upon  any  conveni- 
ence or  inconvenience  to  the  parties.  As  tp  the  know- 
ins:  of  the  persons,  the  cases  respecting  defendants  have 
decided  that  this  circumstance  is  immaterial ;  and  as  to 

(a)  Scott  V.  Godwin,   1  Bos.  &  Pul.  67.     Jell  v.  Douglas,  4  B.  & 
A.  374.     Eccleston  v.  Clipsham,  1  Wms.  Saund.  154.  n.  1. 
{h)  Cabell  v.  Vauglian,  1  Wras.  Saund.  291.(g-) 
(c)  Skin.  640.     2  Stra.  820. 
\d)  5  Burr.  2611.     S.  C.  2  Blacks.  Rep.  695. 


AGAINST  STRANGERS.  135 

the  convenience  or  inconvenience  of  the  thing,  it  should 
seem  more  convenient  that  the  parties  should,  after  issue 
joined,  proceed  upon  the  merits,  than  that  the  defendant 
should  be  allowed  to  nonsuit  the  plaintifFupon  a  mere  mat- 
ter of  form."  However,  the  rule  is  general,  not  applicable 
solely  to  actions  of  assumpsit  on  parol  contracts,  but 
affecting  alike  every  species  of  action  bottomed  on  con- 
tract, such  as  debt  or  covenant.     In  an  action  of  debt 
upon  a  bond  or  a  covenant  for  payment  of  money,  or  in 
an  action  of  covenant  brought  to  recover  damages  for  the 
non-performance  of  a  covenant,  if  it  appear,  for  the  first 
time,  at  the  trial,  that  in  the  former  instance,  the  bond 
or  covenant,  or,  in  the  latter,  that  the  covenant  only 
were  delivered  and  entered  into  in  favour  of  the  plaintiff 
jointly  with  another  person,  and  the  nonjoinder  of  that 
person  is  not  excused  by  the  plaintiff  by  an  averment  of 
his  death,  the  defendant  may,  under  a  plea  of  non  est 
factum,  avail  himself  of  the  objection,  and  the  plaintiff 
will  be  nonsuited;    but,  if  the  objection   is   apparent, 
otherwise  than  at  the  trial,  as  if  the  pleadings  themselves 
disclose  it,  the  defendant,  as  in   actions  of  assumpsit, 
may  take  advantage  of  it,  either  by  demurrer,  in  arrest 
of  judgment,  or  by  writ  of  error.(e)     A  defendant  may, 
likewise,  avail  himself  of  the  objection,  by  pleading  in 
abatement.(y) 

*With  respect  to  actions  ex  delicto,  or  actions  [  *136  ] 
of  trespass,  or  of  tort,  brought  by  partners,  the 
rule  is  different  from  that  which  prevails  in  actions 
founded  upon  contract.  Notwithstanding  all  the  several 
parties  who  are  jointly  concerned  in  interest  ought, 
when  a  joint  injury  is  sustained,  regularly  to  join  in  an 
action  for  its  redress,(l)  still,  if  all  of  them  have  not 
joined,  the  defendant  must  plead  the  omission  in  abate- 
ment,(^)  (2)  and  cannot  otherwise  take  advantage  of  the 

(c)  Cabell  v.  Vaughan,  1  Wms.  Saund.  291.  f. 
(/)  Com.  Dig.  Tit.  Abatement,  E.  12. 

(g)  A  plea  in  abatement  is  that  which,  without  denying  that  the 
plaintiff  has  such  a  cause  of  action  as  is  alleged,  asserts  that  in  some 

(1)  Patten  etal.  v.  Gurney  et  al.  17  Mass.  Rep.  182. 

(2)  Wheelright  v.  Depeyster,  1  Johns.  Rep.  471. 

24 


137  LEGAL  RE3IEDIBS    FOR  PARTNERS 

objection.(A)  (3)  This  rule  has  been  long  estabUshed  ; 
for  so  far  back  as  the  time  of  Lord  Hale  we  find  this 
doctrine  laid  down  by  him :  "  If  a  tenant  in  common 
bring  a  personal  action  without  his  fellow  joining  in  the 
suit,  the  defendant  ought  to  take  advantage  of  it  in 
abatement ;  but  if  he  plead  not  guilty,  it  shall  be  good ; 
but  then  he  shall  recover  damages  only  for  a  moiety ."(i) 
The  opinion  of  Lord  Ch.  J.  King  is  in  perfect  con- 
cordance with  Lord  Hale's :  "  If  one  tenant  in  common 
of  a  personal  indivisible  chattel  bring  trover  against  a 
stranger,  if  the  stranger  doth  not  plead  the  tenancy  in 
common  in  abatement,  he  can  have  no  benefit  of  it  in 
evidence  under  the  general  issue."(A:)  Neither  can  it, 
according  to  modern  decisions,  avail  a  defendant  who 
neglects  to  plead  the  nonjoinder  in  abatement,  that  the 
defect  appears  on  the  face  of  the  declaration,  although 
consistently  with  the  older  authorities,(/)  if  the  defective 
title  were  disclosed  by  the  record,  it  was  a  ground  to 
arrest  the  judgment.(m)  The  law  upon  this 
[*137]  subject  was  very  *fully  and  ably  considered  in 

incidental  respect  the  action  is  improperly  brought :  and  the  object  of 
it  is  not  to  defeat  the  claim,  but  to  delay  the  prosecution  of  it.  The 
character  generally  ascribed  to  it  is,  that  it  must  give  the  plaintiff  a 
better,  writ ;  but  this,  although  generally,  is  not  universally  true ;  for 
sometimes  the  right  of  delaying  the  claim  by  a  plea  in  abatement  is 
founded  on  a  temporary  disability  of  the  plaintiff,  to  sue,  as,  that  he  is 
an  outlaw  or  an  alien  enemy.  There  are  several  rules  by  which  these 
pleas  are  held  to  much  greater  strictness  than  those  which  go  to  the 
merits  of  the  action ;  but  a  more  particular  exposition  of  their  nature 
and  effects  would  be  foreign  to  the  present  purpose. 

{h)  Bloxam  v.  Hubbard,  5  East,  420.  Cabell  v.  Vaughan,  1  Wms. 
Saund.  291,  h. 

(i)   1  Mod.  102.     See  also  Skinn.  640. 

(A:)  Barnardiston  v.  Chapman,  cited  4  East,  121.  See  also  Brown  v. 
Hedges,  Salk.  290.  Cro.  Eliz.  554.  Evidence  of  a  joint  tenancy,  or 
tenancy  in  common,  between  the  plaintiff  and  a  third  person,  cannot  be 
received  under  the  general  issue  in  bar  of  the  action  ;  but  as  the  plain- 
tiff can  only  recover  damages  for  the  value  of  his  share  of  the  property, 
such  evidence  is  admissible  for  the  purpose  of  ascertaining  the  amount 
of  damages.     Nelthorpe  v.  Dorrington,  2  Lev.  113.     Bull.  N.  P.  35. 

(/)    See  Hamon  v.  White,  Sir  W.  Jones,  142.     S.  C.  Latch.  152. 

{m)  Uabell  v.  Vaughan,  1  Wms.  Saund.  291.  h. 


(3)  Wheelright  v.  Depeyster. 


4 


AGAINST  STRANGERS.  137 

the  case  of  Addison  v.  Overend,(ji)  in  which  the  Court 
of  King's  Bench  determined,  that  if  one  of  several  part- 
owners  of  a  chattel  sue  alone  for  an  injury  done  to  it, 
the  defendant  can  only  take  advantage  of  the  objection 
arising  from  the  nonjoinder  of  the  other  by  a  plea  in  abate- 
ment, and  that  the  circumstance  of  the  defect  in  parties 
appearing  on  the  face  of  the  declaration  does  not  form 
a  ground  for  arresting  the  judgment.  And  if  a  defendant 
does  not  avail  himself  of  the  opportunity  afforded  to  him 
of  pleading  in  abatement  of  the  action  first  brought  by  a 
single  partner,  or  part-owner  of  a  chattel,  he  is  precluded 
from  taking  the  same  objection  to  an  action  brought  by 
the  other  partner  or  another  part-owner  of  the  same 
chattel;  because  by  omitting  to  plead  in  abatement  in 
the  first  instance,  he  must  be  taken  to  have  assented  to 
the  severance  of  the  actions.  Therefore,  it  has  been 
decided,(o)  that  if  one  part-owner  has  sued  alone  and 
recovered,  the  defendant,  not  having  availed  himself  of 
his  plea  in  abatement,  cannot  plead  to  the  action  of  a 
second  part-owner,  that  the  first,  who  has  already  re- 
covered a  satisfaction,  ought  to  have  joined ;  and  Mr. 
Justice  Lawrence  has  expressed  his  opinion,  that  if  there 
had  been  several  remaining  tenants  in  common,  the  de- 
fendant could  never  have  objected  to  the  severance  of 
the  actions  after  omitting  to  plead  in  abatement  in  the 
first  action,(l) 

As  in  actions  brought  by  individuals,  the  defendant  is 
allowed  to  set  off"  what  is  due  to  him  from  the  plaintiff 
in  reduction  or  extinguishment  of  the  demand  made 
against  him,  so  in  those  which  are  instituted  by  partners 
the  defendant  has  the  same  right  of  set  off.     This  is  al- 

(n)  6  T.  R.  766.  In  the  case  of  Snellgrove  v.  Hunt.  1  Chitt.  Rep. 
71.  S.  C.2  Stark.  N.  P.  C.  424.,  where  one  or  two  assignees  of  a 
bankrupt  sued  in  trover,  the  nonjoinder  was  held  to  be  a  ground  of 
nonsuit  under  a  plea  of  the  general  issue ;  and  Lord  Tenterden  observed, 
that  he  did  not  recollect  any  case  where  such  a  nonjoinder  had  been 
pleaded  in  -abatement. 

(o)  Sedgworth  v.  Overend,  7  T.  R.  279. 


(1)  So  if  he  settle  the  demand  by  a  reference.     Baker  v,  Jewell,  6 
ass.  Ren.  460. 


Mass.  Rep.  460 


137  LEGAL   REMEDIES    FOR  PARTNERS 

lowed  to  prevent  a  circuity  of  actions,  by  an  investiga- 
tion of  the  counter-claims  to  settle  and  adjudicate  the 
rights  of  the  different  parties  in  one  and  the  same  suit. 
The  right  of  set-off  we  will  consider,  first,  as  it  respects 
actions  brought  by  all  the  partners,  and  secondly,  as  it 
regards  those  actions  in  which  the  survivor  of  the  part- 
ners alone  appears  as  a  plaintiff.     Where  the  action  is 

brought  by  all  the  partners,  nothing  is  capable 
[  *138  ]  of  being  set  against  their  demand,  except  a  *debt 

jointly  due  from  them  to  the  defendant ;  for,  to 
admit  of  a  set-off,  there  must  not  only  be  a  mutuality  of 
debt,  but  whatever  is  due  must  be  a  debt  due  in  the  same 
right. (/>)  Therefore,  a  separate  debt  due  from  an  indi- 
dividual  partner  is  not  the  subject  of  set-off  against  the 
joint  demand  of  a  firm;(l)  unless,  indeed,  the  parties 
renounce  this  right  and  deal  under  an  agreement  ex- 
pressly admitting  of  such  a  set-off.(9)  (2)  But  money 
due  for  advances  made  by  bankers  to  their  customer 
upon  a  bond  given  by  the  customer  to  one  of  the  part- 
ners, in  trust  for  the  rest,  may  be  set  off  against  a  del)t 
from  the  firm.(r)  And  any  bona  fide  demand  contracted 
by  one  partner  in  the  name  of  the  partnership  may  be 
set  against  a  debt  incurred  to  the  firm.(s)     And  it  will 

{jp)  See  2  Geo.  2.  c.  22.  s.  13,,  made  perpetual  by  8  Geo.  2.  c.  24. 
s.  4.  At  Common  Law,  a  set-off  is  not  allowable  at  all.  May  v. 
Brown,  3  B.  &  C.  134. 

(9)  Kinnerley  v.  Hossack,  2  Taunt.  170. 

(r)   Crosse  v.  Smith,  1  Maule  &  Selw.  545. 

{s)  Teed  t;.  Elworthy,  14  East,  210. 

(1)  Scott  V.  Trent,  1  Wash.  Rep.  77.  Armistead  v.  Butler's  Mm. 
1  Hen.  and  Munf.  176.  Howards  v.  WarfieWs  Adm.  4  Har.  & 
McHen.  21.  Poivrie  et  al.  v.  Fletcher  et  al.  2  Bay's  Rep.  146. 
Ladue  v.  Hurt,  4  Wend.  Rep.  583.  See  7  Cranch,  567,  8.  And 
although  a  person  having  a  claim  against  a  mercantile  company  cannot 
set  off  such  claim  against  a  debt  due  from  himself  to  one  of  the  part- 
ners, yet  it  is  competent  for  him  to  charge  that  partner  in  Equity  (in 
extinguishment  of  the  said  debt,)  for  so  much  of  the  surjplus  of  the 
partnership  property,  as  may  be  due  to  such  partner  on  a  settlement  of 
the  partnership  accounts  ;  for  the  purpose  of  which  settlement,  and 
also  for  that  of  ascertaining  and  adjusting  his  own  claim  against  the 
Company,  all  the  partners  should  be  made  defendants  to  his  Bill.  Dun- 
bar V.  Buck  et  al.  6  Munf.  54. 

(2)  Lovel  et  al.  v.  Whitridge,  1  McCords  Rep.  7. 


AGAINST  STRANGERS.  138 

not,  in  such  a  case,  affect  the  debt  proposed  to  be  set-off, 
that  it  was  incurred  by  a  mere  nominal  partner,  who  was 
uninterested  in  the  profits ;  because  although,  as  between 
themselves,  they  may  not  be  partners,  yet  strangers  who 
are  not  cognizant  of  their  private  arrangements  must  be 
guided  by  external  indications.(^)  So  a  debt  on  a  bond 
purportmg  to  be  a  joint  and  several  bond,  but  executed 
only  by  one  of  the  obligors,  may  be  set  against  a  demand 
made  by  the  obligor  who  has  executed  it(ii)  And  if  a 
person  make  and  remit  a  promissory  note  to  his  bankers, 
who  indorse  it  to  an  individual  partner  in  respect  of  a 
debt  due  to  him  from  the  firm,  in  an  action  by  such  in- 
dorsee against  the  maker  of  the  note,  the  latter  may  set 
any  debt  due  to  him  from  his  bankers  against  the  de- 
mand on  the  note ;  because  the  holder  being  a  partner 
in  the  banking-house,  the  members  of  that  firm  could 
not,  as  between  themselves,  divert  the  note  to  another 
purpose,  and  leave  the  whole  of  the  defendant's  debt 
outstanding.(v)  In  like  manner,  if  an  action  be  brought 
by  an  ostensible  and  a  dormant  partner,  the  defendant, 
it  has  been  said,  may  set  off  a  debt  due  to  him  from 
the  ostensible  partner.  Thus,  where  a  single  partner 
was  permitted  by  his  co-partners  to  appear  as  solely  in- 
terested in  a  business,  in  an  action  by  all  the 
partners  to  recover  a  joint  debt,  it  was  held  *that  [  *139  ] 
the  defendant  might  set  against  it  a  debt  due  to 
him  from  the  single  partner.(w)  (1)  So,  if  a  factor,  who 
sells  goods  for  a  firm  under  a  del  credere  commission, 
sells  them  as  his  own,  and  the  buyer  knows  nothing  of 

(t)  Teed  v.  El  worthy,  14  East,  210. 

[ii)  Fletcher  v.  Dyche,  2  T.  R.  32.  Elliott  v.  Davis,  2  Bos.  & 
Pul.  338. 

{y)  PuUer  v.  Roe,  Peake's  N.  P.  C.  197. 

{iv)  Stacy  V.  Decy,  1  Esp.  N.  P.  C.  469.  S.  C.  7  T.  R.  3G1.  n. 
But  see  Lloyd  v.  Archbowle,  2  Taunt.  234.  Skinner  v.  Stocks,  4  B. 
&  A.  437.  Grant  v.  The  Royal  Exch.  Ass.  Comp.  .5  Maule  & 
Selw.  439. 


(1)  See  and  consider  Rose  v.  Murchie,  2  Call's  Rep.  409  ;  and  ob- 
serve the  reasoning  of  the  Court  in  Lord  v.  Baldwin,  0  Pick.  Rep.  348. 
See  also  10  Conn.  Rep.  40;  and  Evernghim  \.  Ensimrth,  7  Wend, 
Rep.  320. 


139  LEGAL  REMEDIES  FOR  PARTNERS 

the  owners,  he  may  set  off  a  debt  due  to  him  from  the 
factor  against  the  demand  of  the  owners  of  the  goods.(ar) 
But  in  an  action  by  a  solvent  member  of  a  firm  and  the 
assignees  of  his  partner,  against  whom  a  commission  of 
bankruptcy  had  issued,  to  recover  payment  of  a  sum 
transferred  by  the  bankrupt  after  he  had  committed  an 
act  of  bankruptcy,  the  defendant,  il  was  held,  could  not 
set  off  a  debt  due  to  him  from  the  firm.(y)  Where  the 
action  is  brought  by  a  surviving  partner,  the  defendant 
may  set  a  debt  due  from  him  as  surviving  partner, 
against  a  debt  due  from  himself  to  the  plaintiff  in  his 
own  right.(z)  (1)  And,  e  converso,  a  debt  due  to  the 
defendant,  as  surviving  partner,  may  be  set  against  a 
demand  on  the  defendant  in  his  own  right.(a)  (2). 

Having  considered  the  various  remedies  which  the  law 
has  furnished  to  partners  for  the  infraction  of  their  rights 
by  strangers,  it  now  remains  to  inquire  into  the  requi- 
site evidence  in  actions  brought  by  partners.  Where  the 
contract,  which  is  the  foundation  of  their  action,  has 
been  expressly  made  with  all  the  members  of  the  firm,  it 
will  be  suflScient  for  them  to  prove  it,  and  the  breach  of 
it,  without  entering  into  evidence  to  show  that  they  are 
partners,  or  have  a  joint  interest  in  the  subject-matter.(6) 
But  if  the  action  is  brought  upon  a  contract,  which  was 
made  by  the  joint  agent  of  all,  or  by  one  partner  in  be- 

{x)  George  v.  Clagett,  7  T.  R.  359. 

(y)  Thomason  v.  Frere,  10  East,  427.     See  Smith  v.  Goddard,  3 
Bos.  &  Pul.  469.  Stainforth  v.  Fellowes,  1  Marsh.  184. 
iz)  French  v.  Andrade,  6  T.  R.  582. 
(a)  Slipper  v.  Stidstone,  5  T.  R.  493. 
\b)  See  Evans  v.  Mann,  Cowp.  569. 


(1)  Header  v.  Scott,  4  Verm.  Rep.  26.  Per  Gibson,  J.,  Wain,  surv. 
partn.  v.  Hewes,  5  Serg.  &  Rawle,  470.  But  where  a  surviving  part- 
ner has  obtained  judgment,  being  insolvent  and  having  previously  made 
an  assignment,  and  the  stale  of  the  partnership  accounts  does  not  ap- 
pear, the  defendant  will  not  be  allowed  to  set  off  a  debt  due  to  him  by 
judgment  obtained  against  the  plaintiff  personally,  on  motion.  Ibid. 
And  it  has  been  held  that  in  an  action  against  one  partner  for  a  debt  due 
by  the  partnership,  a  receipt  by  the  plaintiff  to  the  defendant  for  goods, 
may  be  set  off,  the  defendant  being  sued  alone.  Purtnance  v.  Suther- 
land, kddis.  Rep.  291.  Sed  quaere. 

(2)  Lewis  V.  Culbertson,  1 1  Serg.  &  Rawle,  48. 


AGAINST  STRANGERS.  139 

half  of  all,  and  their  names  have  not  been  expressly  men- 
tioned, it  will  be  incumbent  on  them  to  prove  a  joint  in- 
terest, arising  by  implication,  as  by  evidence  that  they 
are  partners,  and  jointly  interested  in  the  particular  sub- 
ject. It  must  be  proved  that  all  the  persons  who  sue 
were  partners  at  the  time  of  the  contract ;  one,  who  has 
been  subsequently  admitted  into  the  firm,  though  under 
an  agreement  to  share  in  profit  and  loss,  from  a 
time  ^antecedent  to  the  contract,  ought  not  to  [  *140  ] 
be  joined  ;(c)  neither  ought  any  of  those,  who 
were  partners  when  the  contract  was  made,  to  be  omit- 
ted.(d)  The  evidence  of  partnership  usually  consists  in 
the  oral  testimony  of  clerks,  or  other  agents  or  persons, 
who  know  that  the  alleged  partners  have  actually  car- 
ried on  business  in  partnership ;  it  is  unnecessary,  even 
in  criminal  cases,  to  produce  any  deed  or  other  agree- 
ment by  which  the  copartnership  has  been  constituted.re) 
And  where  a  witness,  called  by  the  partners  to  prove  the 
fact  of  partnership,  is  unable,  at  the  moment,  to  specify 
the  several  names  of  the  partners,  a  number  of  names, 
containing  those  of  the  partners  amongst  others,  may  be 
suggested  to  him,  for  the  assistance  of  his  memory.(y) 
When  partners  sue  as  indorsees  of  a  bill  of  exchange, 
and  the  bill  has  been  indorsed  to  them  in  blank,  it  will 
not  be  necessary  for  them  to  prove  that  any  are  in  part- 
nership, or  that  the  bill  was  delivered  to  them  joint- 
ly ;(^)(1)  but  if  the  bill  is  made  payable  or  indorsed 

(c)  Wilpford  V.  Wood,  1  Esp.  N.  P.  C.  128. 

((/)  Leglise  v.  Charapante,  2  Stra.  820.  In  one  case,  where  an  ac- 
tion was  brought  in  the  names  of  two  persons,  with  whom  the  defen- 
dant had  dealt  as  partners,  and  it  appeared  that,  at  the  time  of  the  con- 
tract, there  was  in  fact  another  partner,  who,  had,  however,  withdrawn 
his  name  from  the  firm,  but  still  continued  to  receive  part  of  the  profits  ; 
although  it  was  objected  that  the  dormant  partner  ought  to  have  been 
joined.  Lord  Kenyon  is  reported  to  have  refused  to  nonsuit  the  plain- 
tiffs.    Leveck  v.  Shaftoe,  2  Esp.  N.  P.  C.  468.     See  ante,  p.  128. 

(e)  3  Stark,  on  Evid.  1067.  Alderson  v.  Clay,  1  Stark.  N.  P. 
C.  406.  (/)  Acerro  v.  Petroni,  1  Stark.  N.  P.  C.  100. 

(g-)  Ord  V.  Portal,  3  Campb.  239.  Rordasnz  v.  Leach,  1  Stark.  N. 
P.  C.  446.     Attwood  v.  Rattenbury,  6  B.  Moore,  584. 


(1)  Declaration  by  indorsee  against  acceptor  of  a  Bill  of  Exchange 
averred,  that  the  bill  had  been  indorsed  to  certain  persons  trading  under 


140  LEGAL  REMEDIES    FOR    PARTNERS 

specially  to  them,  strict  evidence  must  be  given  that  the 
partnership  consists  of  the  parties  named  on  the  re- 
cord.(A)(l)  And  it  is  stated  to  have  been  held,  that  if  a 
bill,  indorsed  in  blank,  is  sent  to  a  particular  house,  and 
an  action  is  afterwards  brought  thereon  by  some  of  the 
members  of  that  house,  and  additional  parties,  there 
must  be  some  evidence  that  that  house  transferred  the 
bill  to  the  plaintiffs,  or  consented  to  their  suing  upon  it; 
and  that  this  evidence  must  be  given,  though  the  bill 
was  sent  to  the  house  for  the  benefit  of  the  persons  who 
sue.(/)(2)  Persons,  who  sustain  the  characters  of  part- 
ners, may,  in  some  instances,  be  admitted  as  witnesses  in 
actions  instituted  on  behalf  of  the  firm,  to  which  they  are 

not  made  parties,  and  the  interest  they  may  pos- 
[  *141  ]  sess  in  *the  event  will  not  disqualify  them  from 

giving  their  testimony.  Thus,  a  man  who,  without 
having  an  interest  in  the  capital  of  a  partnership  or  its 
profits,  suffers  his  name  to  be  used  as  a  partner,  is  a  com- 
petent witness  in  an  action  commenced  by  the  actual  pro- 
prietor of  the  concern,  to  prove  a  contract  made  with  such 

(h)  Ord  V.  Portal,  supra. 

{i)  Machell  v.  Kinnear,  1  Stark.  N.  P.  C.  499. 


the  firm  of  Habgood  4-  Fowler,  and  that  Habgood  8f  Fowler  had  in- 
dorsed the  bill  by  procuration  of  one  John  Dickson  to  Cowie,  from 
whom  plaintiff  derived  title.  In  proof,  it  appeared  that  the  firm  of 
Hab-^ood  (S;-  Fowler  had  ceased  to  exist  for  ten  years  prior  to  the  in- 
dorsement, but  that  a  new  firm  of  Habgood  ^'  Co.  had  been  established, 
and  that  Dickson,  one  of  the  members  thereof,  was  in  the  habit  of  in- 
dorsing bills  by  procuration  in  the  name  of  Habgood  4'  Fowler,  but 
that  all  other  transactions  in  trade  were  carried  on  in  the  name  of  Hab- 
o-ood  fy  Co.  only :  Held,  that  as  between  innocent  indorsee  and  ac- 
ceptor there  was  sufficient  evidence  to  satisfy  the  allegation  in  the  de- 
claration. Tfllliamson  v.  Johnson,  2  Dowl.  &  Ryl.  Rep.  281.  See 
Ardley  v.  Russell,  1  P.  A.  Browne's  Rep.  145. 

(1)  McGregor  et  ul  v.  Cleveland,  5  Wend.  Rep.  475. 

(2)  If  several  persons,  not  partners  in  business,  separately  indorse 
for  the  accommodation  of  the  drawer,  a  bill  of  exchange,  Avhich  has 
been  previously  indorsed  by  another  person,  and,  on  being  dishonored, 
pay  the  party  who  has  discounted  it  in  equal  proportions,  they  may 
strike  out  their  own  indorsements,  and  bring  a  joint  action  against  such 
previous  indorser,  to  recover  the  amount  of  the  bill.  Low  et  al.  v. 
Copestake,  3  Carr.  &-  Payne,  300. 


I 


AGAINST  STRANGERS.  141 

proprietor  in  the  joint  name.(y)  And,  in  an  action  on  a 
contract,  a  dormant  parlner  not  being  one  of  the  con- 
tracting parties,  and  who  has  had  no  privity  of  commu- 
nication with  them  on  the  subject  of  the  contract,  is 
competent  to  prove  the  contract.(^)(l)  So  a  party  is 
competent,  although  he  has  purchased  from  the  plaintiff 
an  interest  in  the  contract  on  which  the  action  is 
brought.(/)  And,  on  the  ground  that  agents  are  from 
necessity  competent  witnesses  for  their  principals,  it  has 
been  held  that  a  person  who  was  employed  to  sell  goods, 
and  was  to  receive  for  his  trouble  whatever  money  he 
could  procure  for  them  beyond  a  stated  sum,  was  a  com- 
petent witness  to  prove  the  contract  between  the  seller 
and  buyer ;  and  that  there  was  not  any  difference,  in 
/point  of  interest,  between  a  person  who  sold  upon  com- 
mission and  one  who  was  to  have  a  share  of  the  pro- 
fit.(m)  So,  if  upon  the  dissolution  of  a  partnership 
there  be  an  agreement  that  each  of  the  partners  shall 
receive  certain  debts,  either  partner  is  competent  in  an 
action  by  the  other  partner  against  a  debtor  to  the  firm, 
to  prove  payment  to  him  according  to  the  agree- 
ment.(7i)  (2)    And,  as  we  have  before  seen,  in  an  action 

{j)  Parsons  v.  Crosby,  5  Esp.  N.  P.  C.  199.     Glossop  v.  Colman, 
1  Stark.  N.  P.  C.  25. 

{k)  Mawman  v.  Gillet,  2  Taunt.  325.  n.  (/)  3  Stark  on  Evid.  1084. 
(m)  Benjamin  v.  Porteus,  2  H.  Bl.  590.  per  Heath  and  Booke  Js. 
(n)  Evans  v.  Silverlock,  Peake's  N.  P.  C.  21. 


(1)  Barstow  v.  Gray,  3  Greenl.  Rep.  409.  See  Curcier  v.  Pennock, 
14  Serg.  &  Rawle,  51;  Clarkson  v.  Carter,  3  Cow.  Rep.  84.  There 
were  releases  in  the  two  last  named  cases,  as  the  parties  offered  as 
witnesses  were  parties  at  the  time  oi  the  making  of  the  contracts. 

(2)  A.  and  B.  jointly  ship  goods,  aijd  consign  them  to  the  master  for 
sales  and  returns,  A.  only  being  known  to  the  master.  After  the  ship's 
departure,  A.  and  B.  agree  to  sever  their  interest  in  the  adventure,  and 
A.  gives  B.  a  written  direction  to  the  master  to  acco,unt  with  B.  for  a 
moiety.  Upon  the  ship's  return,  B.  shows  the  direction  to  the  master, 
and  demands  payment  of  him.  The  master,  not  having  brought  the 
proceeds  in  the  ship,  refuses  to  account  with  B.,  but  at  the  same  time 
says,  he  was  ready  to  account  with  the  right  owner,  and  when  the 
proceeds  should  arrive,  he  would  pay  them  to  B.  if  they  belonged  to 
him.  This  was  a  sufficient  promise  to  support  an  action  of  assumpsit 
by  B.  against  the  master  for  the  moiety,  and  in  such  an  action  A.  is  a 

25 


141 


LEGAL  REMEDIES  FOR  PARTNERS 


by  several  partners  against  the  defendant  for  the  non- 
performance of  an  agreement,  a  declaration  by  one  of  the 
partners,  that  the  goods  to  which  the  agreement  related 
were  his  separate  property,  and  had  been  alloted  to  him 
out  of  the  partnership  stock,  is  evidence  against  the 
plaintiffs  suing  as  upon  a  joint  contract.(o)  Upon  the 
same  principle,  one  of  the  partners,  although  party  to 
the  suit,  may,  if  the  defendant  waives  all  objection  to  his 
testimony,  and  with  his  consent,  be  admitted  as  a  witness, 
to  disprove  the  defendant's  hability  to  the  demand  made 

upon  him,  notwithstanding  he  at  the  same  time 
[  *142  ]  *defeats  the  claim  of  those  who  jointly  sue  with 

him ;  for,  as  evidence  of  a  declaration  against 
his  interest  out  of  court  would  be  admissible,  the  proof 
cannot  be  less  credible,  if  he  declares  the  same  thing 
upon  oath  at  the  time  of  the  trial.(^9)  Where  it  ap- 
peared on  the  record  that  the  agreement,  out  of  which 
the  cause  of  action  arose,  was  made  by  the  plaintiff  on 
behalf  of  himself  and  other  proprietors,  it  was  held 
that  declarations  made  by  one  of  such  proprietors  were 
admissible  evidence  on  the  part  of  the  defendants. (^) 

A  defendant  may  be  held  to  bail  upon  an  affidavit 
made  by  one  partner  without  the  consent  of  the  others, 
if  the  deponent  swear  positively  to  the  debt,  and  express- 
ly negative  any  tender  of  bank-notes  having  been  made 
to  himself,  or  to  either  of  his  partners,  to  the  best  of 
his  knowledge  and  be]ief.(r)  It  remains  to  be  observed, 
that  where  one  partner  resides  abroad,  and  the  others  in 
England,  an  action  upon  a  contract  made  with  the  firm 
must,  to  avoid  a  plea  of  the  statute  of  hmitations,  be 
brought  within  six  years  after  the  cause  of  action 
arises.(s) 

(o)  Lucas  V.  Delacour,  1  Mau.  &  Sehv.  249. 
(p)  Norden  v.  Williamson,  1  Taunt.  378. 
(f/)  Kemble  v.  Farren,  3  C.  <fc  P.  N.  P.  C.  523. 
(r)  Stacey  v.  Frederici,  2  Bos.  &  Paul,   390.     See  also  Saville  v. 
Roberts,  1  Ld.  Raym.  374. 
(s)  Perry  v.  .Tackson,  6  T.  R.  516. 


competent  witness  for  the  plaintiff.     Austin  v.  Walsh,  2  Mass.  Rep. 
401. 


AGAINST    STRANGERS.  JL42 

SECTION  II. 

Equitable  Remedies  for  Par  triers  against  Strangers, 

The  equitable  remedies  possessed  by  partners  for  the 
vindication  of  their  rights  against  strangers,  are  analo- 
gous to  those  which  may  be  resorted  to  as  between  in- 
dividuals ;  nor  are  there  any  striking  peculiarities  to  be 
remarked  in  the  prosecution  of  a  suit  in  equity  by  them. 
In  such  cases,  the  pleadings  are  much  the  same  as  when 
there  is  only  one  individual  on  each  side.  All  the  partners 
ought  to  join  in  the  suit,  and  a  plea  of  want  of  parties  goes 
both  to  discovery  and  relief  where  relief  is  prayed  ; 
though  the  want  of  parties  is  no  objection  to  a  bill  for  a 
discovery  merely.(/)  But  an  objection  for  want 
of  parties  will  not  *be  allowed,  where  a  sufficient  [  *143  ] 
reason  to  excuse  the  defect  is  suggested  by  the 
bill ;  as  where  the  party  omitted  is  resident  out  of  the 
jurisdiction  of  the  court,  and  the  bill  charges  that  fact ; 
unless  the  defendant  should  controvert  the  excuse  made 
by  the  bill,  by  pleading  matter  to  show  it  false,  (li)  And 
the  .rule  that  all  persons  interested  in  the  suit  must  be 
parties  admits  of  exception,  and  yields  when  justice  re- 
quires it,  in  the  instance  either  of  plaintiffs  or  defendants. 
Where  a  bill  is  filed  by  the  partners  or  proprietors  of 
any  great  adventure,  the  rigid  enforcement  of  the  rule 
would  lead  to  perpetual  abatements,  and  therefore  a 
court  of  equity  has  long  held,  that  there  is,  of  necessity,  an 
exception  to  the  general  rule  when  a  failure  of  justice 
would  ensue  from  its  too  strict  application.  Thus,  where 
it  is  impracticable,  from  their  number,  to  make  all  the 
proprietors  of  a  joint  undertaking  parties  by  name,  and 
a  sufficient  number  are  brought  before  the  court  to  re- 
present the  absentees,  an  objection  for  w^ant  of  parties 
will  not  be  suffered  to  prevail.(v)(l)     But  the  members 

{t)    Lord  Redesdale's  Tr.  on  Plead.  226. 

\ii)  Lord  Redesdale's  Tr.  on  Plead.  226.  and  p.  134.s  Beamcs  on 
PI.  in  Eq.  15L 

{v)  Chancey  v.  May,  Prec.  in  Cha.  (ed.  Finch)  592.     Meux  v. 

(1)    Wendell  V.  Van  Rensselaer,   Wiser  v.  Blackly,  I  Johns.  Cha. 


143        EQUITABLE  REMEDIES  FOR  PARTNERS 

who  sue  cannot  do  so  in  their  individual  capacities ;  their 
right  of  suing  is  only  qua  members,  and  they  must  ask 
for  relief  not  for  themselves  only  but  for  all  the  other 
members  of  the  society.  Therefore,  v^here  to  a  bill  for 
the  specific  performance  of  an  agreement,  for  a  lease 
entered  into  by  the  trustees  of  a  numerous  company,  for 
the  use  of  the  company,  the  defendant  demurred,  on  the 
ground  that  it  did  not  appear  by  the  bill  that  the  plain- 
tiffs were  members  of  the  company,  and  that  none  of  the 
members  were  made  parties,  the  demurrer  was  allow- 
ed, [id)  And  where  the  plaintiffs  sued  on  behalf  of  them- 
selves and  others,  being  subscribers  to  a  joint  stock 
company,  and  who  had  assigned  to  them  their  interests 
in  the  concern,  with  powers  to  sue  and  otherwise  act  for 
them,  but  upon  condition  that  after  payment  of  all  ex- 
penses the  plaintiffs  should  hold  any  thing  recovered  in 
trust  for  the  said  others ;  a  demurrer,  ore  tenus,  that  such 

other  persons  were  not  parties  to  the  suit,  pre- 
[  *144  ]  vailed.(j:)    *There  is  one  species  of  suit  in  equity 

peculiar  to  partners,  namely,  a  bill  to  be  quieted 
in  the  possession  of  the  partnership  property,  where  the 
seperate  creditor  of  an  individual  partner  has  taken  the 
joint  effects  in  execution.  The  person  claiming  under  an 
execution,  founded  on  a  judgment  for  such  a  debt,  is  only 
entitled  to  the  undivided  share  of  the  indebted  partner, 
and  that  subject  to  an  account  between  him  and  the  part- 
nership. The  solvent  partners  may,  therefore,  on  a  bill 
filed  for  the  purpose,  obtain  an  injunction  to  stay  pro- 
ceedings under  the  execution,  until  the  proper  accounts 
are  taken,  and  it  is  ascertained  what  interest  the  debtor 


Maltby,  2  Swanst.  277.  Cousins  v.  Smith,  13  Ves.  542.  Where  a 
private  act  of  Parliament  enables  a  company  to  commence  all  actions  and 
suits  in  the  name  of  their  secretary,  as  nominal  plaintiff,  it  seems  that 
they  are  at  liberty  to  file  a  bill  in  equity  in  his  name.  Per  Holroyd,  J. 
Guthrie  v.  Fisk,  3  B.  &  C.  185.     See  ante,  p.  95. 

{w)  Douglas  V.  Horsfall,  2  Sim.  &  Stu.  184. 

[x)  Blair  v.  Agar,  1  Sim.  37. 


Rep.  350,  437.     See  Fan  Vechten  et  al.  v.  Terry  ct  al.  2  Johns.  Cha. 
Rep.  197. 


AGAINST  STRANGERS.  144 

has  in  the  partnership  stock(y);  and,  if  it  appears  that 
he  has  not  any  interest,  the  injunction  will  be  made  per- 
petual.(2)  After  judgment  obtained  at  law  against  a 
partnership  firm  for  a  debt,  a  court  of  equity  will  not,  it 
seems,  at  the  instance  of  one  partner,  grant  an  injunction 
to  stay  execution  on  the  ground  that  he  had  retired  from 
the  partnership  long  before  the  debt  was  incurred,  and 
that  the  plaintiff  at  law  was  apprised  of  it,  because 
such  circumstances  would  constitute  a  good  legal  de- 
fence.(a)(l) 


*CHAPTER  IV.  [*145] 

SECTION  I. 

Legal  Remedies  against  Partners. 

Our  inquiries  have  hitherto,  been  engaged  in  ascer- 
taining what  are  the  remedies  possessed  by  partners  for 
the  adjustment  of  differences    existing  between  them- 

(y)  Taylor  v.  Fields,  4  Ves.  396.  S.  C.  15  Ves  559:  n.  Barker 
V.  Goodair,  11  Ves.  85. 

(z)  Taylor  v.  Fields,  supra. 

(a)  Protheroe  v.  Forrnan,  2  Swanst.  227. 


(1)  There  is  no  case  to  be  found  in  the  English  Reports,  in  which 
an  injunction  has  been  obtained,  upon  a  bill  by  the  solvent  partner 
against  an  execution  creditor  and  the  partner  whose  interest  in  the  con- 
cern is  sought  to  be  affected  by  the  execution.  The  cases  cited  by 
Mr.  Gow,  who  has  stated  the  doctrine  of  the  Court  of  Chancery  as  it 
has  been  stated  by  Mr.  Maddock,  (Mad.  Chan.  vol.  i.  page  136,  2d 
Am.  edit.)  and  Mr.  Eden  (Treat,  of  Inj.  page  50,  51.  Lond.  edit.)  by 
no  means  warrant  the  conclusion,  that  in  such  a  case  the  proceedings 
under  the  execution  will  be  stayed  by  injunction  until  the  proper 
accounts  are  taken.  The  case  of  Moodij  v.  Payne,  2  Johns.  Cha.  Rep. 
548,  presented  the  very  question,  and  Chancellor  Kext — stating  that  he 
knew  not  that  the  Court  of  Chancery  had  ever  undertaken  to  stop  an 
execution  in  such  a  case,  and  that  it  would  be  too  much  for  him  to 
assume  to  do  so  without  a  precedent — dissolved  the  injunction  wliich 
had  been  obtained.     See  2  Conn.  Rep.  524. 


145  LEGAL  REMEDIES 

selves,  and  likewise  those  which  are  furnished  to  them 
for  the  vindication  of  their  rights  when  violated  by 
strangers;  we  will  now  endeavour  to  explain  what  are 
the  legal  liabilities  they  incur  to  third  persons,  which, 
both  as  they  regard  the  partners  themselves,  and  those 
who  have  dealings  with  them,  are  of  the  utmost  impor- 
tance. In  this  investigation,  and  under  this  head,  we 
must,  to  avoid  repetition  and  unnecessary  prolixity,  in- 
corporate, in  a  great  measure,  the  power  impliedly 
granted  by  law  to  one  partner,  of  binding  his  co-part- 
ners, which  we  have  before  at  length  explained.  It 
scarcely  need  be  observed,  that,  in  the  exercise  of  that 
power,  any  partner  will  render  the  firm  responsible,  so 
long  as  the  person,  with  whom  he  contracts,  deals  with 
him  on  the  footing  of  his  being  one  of  its  constituent 
members,  without  being,  either  directly  or  indirectly, 
apprised  of  a  revocation  of  the  authority  presumptively 
arising  from  his  relative  situation.  The  very  constitution 
of  the  relationship  of  co-partners  furnishes  a  presumption 
that  each  individual  is  an  authorised  agent  for  the  rest, 
but  this  presumption  has  no  operation,  where  a  party 
who  would  rely  upon  it,  has  received  express  notice  to 
the  contrary,  or  where  the  transaction  between  himself 
and  the  individual  partner  is  a  fraud  upon  the  rest. 
With  the  exception  of  the  power  so  possessed  by  each 
of  binding  the  others,  the  responsibilities  which,  as  a 
body,  partners  incur,  differ  not  essentially,  with  regard 
to  contracts,  from  those  that  may  be  created  between 
individuals.  Of  torts,  they  can  seldom,  perhaps  in  no 
instance,  be  actually  guilty  in  their  joint  capacity ;  but, 
where  an  injury  has  been  inflicted  through  the  negligent 

management  of  a  carriage  or  vessel  belonging 
[*146]  to   persons    *jointly,    although    the   law    does 

not,  as  a  consequence  of  that  act,  ascribe  to 
each  proprietor  the  character  of  trespasser,(a)  yet,  on 
the  ground  of  the  joint  ownership,  it  holds  all  liable  to 
repair  the  injury  sustained,  whether  the  person  appointed 
to  drive  the  carriage,  or  to  steer  the  vessel  was  or  was 
not  one  of  themselves.     The  task  of  deciding  in  what 

(a)  Moreloii  v.  Ilardern,  4  B.  &  C.  223. 


AGAINST  PARTNERS.  146 

instances  partners  are  responsible  is  easy,  when  the 
question  of  liabihty  arises  in  a  case  in  which  they  have 
all  concurred;  but  it  becomes  comparatively  difficult,  if 
the  subject  of  dispute  originated  not  in  the  act  of  all,  but 
of  a  single  partner.  Perplexity  has,  likewise,  arisen 
where  juclgment  has  been  obtained  against  an  individual 
partner  for  his  separate  debt,  and  the  writ  of  execution, 
consequent  upon  the  judgment,  has  been  executed  against 
the  separate  interest  of  that  partner  in  the  joint  effects. 
The  right  with  which,  in  such  a  case,  the  law  invests  the 
judgment  creditor,  we  will,  in  its  proper  place,  consider. 
The  subject  of  inquiry  which  now  presents  itself  is,  in 
what  instances  a  joint  responsibility  to  third  persons  is 
brought  upon  partners,  either  by  the  concurrent  act  of 
the  tirm,  or  the  separate  act  of  a  single  partner. 

When  the  contract  attempted  to  be  enforced  against 
a  firm  is  one  which,  in  its  inception,  received  the  sanction 
and  countenance  of  each  partner,  the  joint  obligation, 
attaching  upon  them  to  perform  it  is  plain  and  manifest. 
Each  individual  member  of  the  firm  is  necessarily  pre- 
sumed to  participate  in  the  benefit  resulting  from  such  a 
contract ;  and  to  countervail  that  advantage,  the  joint 
duty,  obliging  them  to  fulfil  it,  is  imposed.     In  substance 
and  effect,  an  engagement  so  made  by  a  firm  is  in  no 
respect  dissimilar  from  the  single  engagement  of  an  in- 
dividual.    The  difterence  is  only  in  the  number  of  the 
parties  to  it ;  but  the  consequences  and  responsibilities 
which  ensue  a  breach  of  it  are   precisely   the   same. 
Similar,  in  every  respect,  are  contracts  entered  into  by 
one  partner  on  the  behalf  of  the  firm,  in  a  transaction 
connected  with  the  partnership.      For  such  a  purpose 
each  partner  separately  is,  to  all  intents,  the  authorised 
and  legally  recognised  agent  and  representative  of  the 
whole  firm;  and  his  acts,  therefore,  referable  as  they  like- 
wise are  to  the  character  of  principal,  which  to  a  certain 
extent  he  sustains,  are  as  binding  upon  the  firm,  as  if  they 
obtained,  at  the  time,  their  express  and  unequivocal  rati- 
fication.   In  simple  contracts,  therefore  of  every 
*dcscription,  in  the  purchase  of  stock  on  the  [*147] 
joint  account,  in  the  making,  drawing,  accept- 
ing, or  indorsing  of  promissory  notes  or  loills  of  ex- 


147  LEGAL  REMEDIES 

change,  one  partner  can,  by  his  own  act,  in  a  transac- 
tion in  its  nature  joint,  pledge  the  credit  of  the  firm  in 
as  effectual  a  manner  as  the  partners  tliemselves,  when 
acting  in  concurrence,  can  do;  audit  is  no  answer  to  a 
claimant  upon  the  firm  that  the  debt  which  he  seeks  to 
recover  was  fraudulently  contracted  by  the  partner,  or 
that  it  arose  from  a  dishonest  and  criminal  misapplication 
of  money  received  by  him,  if  the  debt  were  incurred,  and 
the  money  received  in  the  course  of  business,  notwith- 
standing that,  in  the  latter  case,  the  single  partner  gives 
his  separate  receipt  for  the  money.(6)  That  the  fraudu- 
lent conduct  of  one  partner  does  not  aftbrd  to  his  co- 
partner a  legitimate  excuse  for  the  non-fulfilment  of  a 
joint  contract  entered  into  by  the  former,  is  strongly  ex- 
emplified by  a  recent  decision.  In  that  case,(c)  A  having 
employed  B  and  C,  who  were  partners  as  wine  and  spirit 
merchants,  to  purchase  wines,  and  sell  the  same  upon 
commission,  C,  the  managing  partner,  represented  that 
he  had  made  the  purchases,  and  that  he  had  sold  a  part 
of  the  wines  at  a  profit,  the  proceeds  of  which  supposed 
sales  he  paid  to  A,  and  rendered  accounts,  in  which  he 
stated  the  purchases  to  have  been  made  at  a  certain 
rate  per  pipe.  In  fact,  however,  C  had  neither  bought 
nor  sold  any  wine ;  the  transactions  were  wholly  ficti- 
tious, of  which  B  was  utterly  ignorant.  Upon  the 
whole  account  a  larger  sum  had  been  repaid  to  A,  as 
the  proceeds  of  that  part  of  the  wine  alleged  to  be  re- 
sold, than  he  had  advanced;  but  the  other  part  of  the 
wine,  which  C  represented  as  having  been  purchased, 
remained  unaccounted  for.  It  was  determined  by  the 
Court  of  King's  Bench,  that  B  was  responsible  for  the 
false  representations  of  his  partner,  and  that  A  was  not 
only  entitled  to  retain  the  money  which  had  been  paid 
to  him  upon  these  fictitious  sales,  but  that  he  might 
maintain  an  action  for  money  had  and  received,  to  re- 
cover the  specific  sums  advanced  for  the  number  of  pipes 
of  wine  unaccounted  for.     So,  where  a  firm  of  bankers, 

(b)  Willeti)   Chambers,  Cowp.  814. 

(c)  Rapp.  V.  Latham,  2  B.  &  A.  795.  A  partnership  cannot  acquire 
properly  in  goods  obtained  by  the  fraud  of  one  of  the  partners,  to  which 
the  rest  are  not  privy.     Kilby  v.  Wilson,  1  Ryan  &  Mood.  178. 


AGAINST  STRANGERS.  147 

employed  to  receive  dividends  in  the  funds  (of  which  one 
of  the  firm  was  a  co-trustee)  had  in  their  own  books 
credited  their  employers  with  the  dividends  as  re- 
ceived, and  had  allowed  them  to  draw  without 
*having  any  other  funds  in  their  hands,  the  [*148] 
bankers  were  held  to  be  bound  by  the  entries 
so  acted  on,  although  not  communicated:  and  they 
could  not  set  up  as  a  defence,  that  the  entries  had  been 
fraudulently  made  by  one  of  the  partners,  the  money 
never  having  been  received  by  the  house,  but  converted 
to  that  partner's  own  use.(c?)  And  where  one  of  three 
trustees  of  stock  in  the  funds,  being  also  a  partner  in  a 
banking-house,  under  a  forged  power  effected  the  sale  of 
the  stock,  the  produce  of  which  was  paid  by  their  agent 
into  the  house  generally,  and  was  never  appropriated  to 
any  particular  account ;  it  was  held,  that  it  being  the 
duty  of  the  house  to  have  placed  it  to  the  credit  of  the 
trustees,  and  subject  to  their  order,  the  latter  was  en- 
titled to  recover  it ;  and  that  if  the  transfer  had  been 
made  without  authority,  or  by  any  wrong  act,  they  might 
waive  the  wrong  and  demand  the  money ;  and  it  was 
also  determined,  that  although  a  party  cannot  sustain 
an  action  against  a  felon,  or  sue  with  him  when  the 
claim  is  founded  on  the  felony  of  one  of  the  defendants, 
yet  after  the  conviction  of  the  felon,  the  parties  who 
have  received  the  money  cannot  protect  themselves 
against  the  demand  for  it,  by  showing  the  felony  on  the 
part  of  one  of  their  niembers.(e)  Even  by  a  guarantee, 
the  power  of  signing  which  is  not  necessary  or  indispen- 
sable to  the  conduct  of  the  trade,  we  have  seen(/)  that 
one  partner  may,  in  some  instances,  implicate  the  firm. 
Nor  is  it  to  transactions  only,  which  strictly  and  actually 
partake  of  a  joint  character,  that  the  power  of  a  single 
partner  to  bind  the  firm  extends.  In  matters  not  affect- 
ing the  partnership,  he  may,  in  some  cases,  exercise  this 
implied  authority,  and  the  contracts  or  engagements  into 
which  he  may  enter  will  be  binding  upon  the  firm,  if  the 


{(l)  Hume  V.  Bolland,  1  Ryan  &i  Mood.  371. 

(e)  Stone  v.  Marsh,  6  B.  &  C.  551.     S.  (:!.  1  Ryan  &  Mood.  364. 

(/)  See  ante,  p.  50. 

26 


148  LEGAL    REMEDIES 

person  with  whom  he  contracts,  be  at  the  time  ignorant 
of  the  fact  of  their  disconnection  with  the  partnership, 
and  deal  with  the  single  partner  in  the  full  confidence 
and  honafide  expectation,  that  what  he  does  individually 
will  receive  the  subsequent  sanction  and  confirmation 
of  the  firm.  Thus,  as  we  have  in  a  preceding  chapter(^) 
stated,  in  the  ordinary  case  of  discount,  one  partner 
may  pledge  the  name  of  the  firm  to  a  bill  of  exchange, 
and  if  there  be  no  mala  fides  on  the  part  of  the  discounter, 

the  firm  will  be  responsible  notwithstanding 
[*149]    *the  discount  of  the  bill  was  procured  by  the 

single  partner  with  the  fraudulent  and  dishonest 
view  of  appropriating  the  produce  to  his  own  private 
purposes ;  and  the  produce  was  afterwards  so  applied. 
So  an  application  by  a  single  partner  of  a  joint  security 
in  discharge  of  his  individual  debt  will,  in  some  instances, 
be  operative  against  the  firm,  if  there  be  no  collusion, 
and  the  transaction  on  the  part  of  the  creditor  be  fair 
and  open  ;  because  it  is  not  necessarily  to  be  inferred,  in 
such  a  case,  that  the  application  is  fraudulent  as  it  res- 
pects the  co-partnership.  The  individual  partner  may, 
for  a  valuable  consideration,  or  in  virtue  of  some  ar- 
rangement with  his  co-partners,  have  become  the  sole 
proprietor  of  the  security,  so  as  to  be  authorised  to  deal 
with  it  as  his  own.(A)  But  a  disclaimer  of  the  partner- 
ship, by  one  of  several  partners  made  to  any  given  indi- 
vidual, will  have  the  effect  of  saving  that  partner  from 
being  bound  by  any  contract  to  be  afterwards  made  by 
the  other  partners  with  the  same  individual,  even  though 
made  conformably  to  the  express  terms  of  partnership 
agreed  upon.  Thus,  three  persons  entered  into  partner- 
ship in  the  trade  of  sugar-boiling,  and  agreed  that  no 
sugar  should  be  bought  without  the  consent  of  the  ma- 
jority. One  of  them  afterwards  made  a  protest  that  he 
would  no  longer  be  concerned  in  the  partnership  with 
them;  the  two  other  persons  subsequently  contracted 
for  sugars,  the  seller  having  notice  that  the  third  had 
disclaimed  the  partnership ;    and  it  was  held  that  he 


(«•)  See  ante,\>  .  46. 

(h)  Per  Lord  Ellenhorongh,  Ridley  v.  Tajior,  13  East,  175. 


II 


AGAINST    PARTNERS.  149 

should  not  be  charged.(z)  And  where,  previously,  to  the 
dissolution  of  a  partnership,  an  order  for  goods  was 
given  by  two  partners,  and  a  bill  for  the  amount  was 
drawn  on  them,  but  was  accepted  only  by  one,  who  car- 
ried on  a  separate  trade,  and  the  goods  were  delivered 
to  him,  it  was  held  that  no  claim  could  be  made  upon 
the  other  partner.(^)  So  if  the  person  with  whom  the 
single  partner  deals  is,  at  the  time  conscious  of  the  mis- 
conduct of  that  partner  in  pledging  the  joint  name  to  a 
separate  transaction,  he  cannot  enforce  against  the  firm 
any  claim  that  may  arise  to  him  out  of  such  dealings. 
Neither  can  he  call  upon  the  firm  to  fulfil  a  contract 
which  has  been  made  by  one  partner,  if  he  be  privy  to  a 
private  agreement  between  the  partners  themselves,  the 
effect  of  which  is  to  throw  the  responsibility 
*upon  the  single  partner  alone.  Therefore,  [*150] 
where  four  persons  are  partners  in  a  coach  con- 
cern, but  one  by  agreement  provides  the  coaches  at  a 
certain  rate  per  mile,  he  alone  is  responsible  for  repairs 
done  to  the  coach,  by  a  person  cognisant  of  this  arrange- 
ment, although  the  names  of  all  four  appear  on  the  vehi- 
cle.(/)  (1)  So,  if  it  be  notorious  that  the  proprietors 
have  separate  departments  and  separate  interests,  they 
must  be  sued  separately  by  the  tradesmen  who  may 
supply  each  with  goods.(m)  But  the  body  of  pro- 
prietors are  jointly  liable  to  a  passenger,  or  a  person 
who  sends  goods  by  their  conveyance;  and  they  are 
equally  responsible  for  any  damage  that  may  be  sus- 
tained through  the  negligence  of  a  servant  engaged  by 
any  one  of  them,  whilst  he  is  in  the  prosecution  of  the 

{i)  Vin.  Abr.  Tit.  Partners,  A.  11.;  and  see  Willis  u.  Dyson,  1 
Stark.  N.P.  C.  164. 

(/c)  Ex  parte  Harris,  1  Madd.  583.  ;  and  see  Finder  v.  Wilks.  1 
Marsh.  248.     S.  C.  5  Taunt.  612. 

(/)  Hiard  u.  Bigg.  cor.  Holroyd,  J.,  Winchester  Springy  Ass.  1819. 
Mann.  N.  P.  Ind.  220. 

(m)  Barton  v.  Hanson,  2  Taunt.  49.     S.  C.  2  Campb.  97. 


(1)  See  Wetmore  et  al.  v.  Baker  et  al.  9  Johns.  Rep.  307. 


150  LEGAL    REMEDIES 

joint  business.(n)(l)  And  where  one  of  several  de- 
fendants, partners  as  carriers,  together  with  the  coach- 
office  keeper,  had  agreed  with  a  party  to  carry  at  the 
ordinary  rates,  notwithstanding  the  notice,  and  there  had 
been  subsequent  accounts  settled  upon  the  footing  of 
such  contract,  it  was  held  that  the  carriers  were  liable, 
and  not  only  the  partners  at  the  time,  but  all  who  might 
afterwards  become  so,  until  special  notice  given  of  an 
intention  to  rescind  the  contract.(o)  In  cases  that  are 
destitute  of  any  intrinsic  circumstances  operating  the 
discharge  of  the  innocent  partners  from  responsibility 
under  a  contract  fraudulently  entered  into  by  the  single 
partner  for  his  own  benefit,  it  is  incumbent  upon  the 
party  with  whom  he  deals  to  observe  the  most  inge- 
nuous conduct ;  for  if  he  can  be  considered  as  apprised 
of  the  nature  of  the  transaction,  or,  still  more,  if  it 
be  manifest  that  the  transaction  has  only  a  separate 
relation  to  the  individual  partner,  it  will  be  unavailing  in 
him  to  attempt  to  affect  the  firm,  unless  he  can  show  that 
the  single  partner  had  the  authority  of  his  co-partners  to 
pledge  their  credit.  If,  indeed,  he  has  obtained  from  the 
individual  partner  a  joint  negociable  security,  under  a 
consciousness  at  the  time  of  the  misapplication,  he  may, 
by  sending  it  into  circulation,  render  it  available  against 

the  firm.  Because,  although  in  his  hands,  were 
[*151  ]  he  to  attempt  to  put  it  in  suit,  the  *instrument 

would  be  void;  yet  if,  by  negociation,  it  get 
into  the  hands  of  a  bona  fide  holder  for  value,  who  w  as 
not  privy  to  the  fraud  originally  practised,  it  would  be 
just  as  operative  against  the  firm,  as  if  it  had  been  free 
from  primary  imperfection.  The  firm  may  likewise  be 
rendered  responsible  for  the  act  of  a  single  partner,  al- 
though unconnected  with,  and  having  no  relation  to,  the 
business  in  which  they  have  jointly  adventured,  if  it  be 

(n)  Barton  v.  Hanson,  2  Taunt.  49.  S.  C.  2  Campb.  97.  And  see 
Wayland  v.  Elkins,  1  Stark.  N.  P.  C.  272.  S.  C.  Holt,  N.  P.  C.  227. 
Fromont  v.  Coiipland,  2  Bingh.  170. 

(0)  Helsby  v.  Mears,  5  B.  &  C.  504.     S.  C.  8  D.  &  R.  289. 

(1)  Dwight  V.  Brewster,  1  Pick.  Rep.  50.  Helsby  et  al  v.  Mears 
et  al.  5  Barn.  &  Cresw.  505. 


AGAINST  PARTNERS.  151 

done  with  their  joint  authority,  either  express  or  im- 

phed.(;?)(l) 

A  joint  contract,  however,  entered  into  by  one  or 
more  individuals,  is  binding  only  upon  those  who  have 
a  joint  interest  in  it  at  the  time  of  its  inception ;  for  no 
subsequent  act  by  any  person,  who  may  afterwards  be- 
come a  partner,  not  even  an  acknowledgment  that  he  is 
liable,  will  entail  upon  that  person  the  obhgation  of  ful- 
filling such  a  contract,  if  it  clearly  appear  that  a  part- 
nership did  not  exist  at  the  time  the  contract  was  made. 
The  joint  interest  must  be  contemporaneous  with  the 
formation  of  the  contract  itself  to  superinduce  the  cor- 
responding liability  to  perform  it.     If  it  were  otherwise 
the  law  would,  in  fact,  create  a  supposed  contract,  when 
the  real  contract,  between  the  parties  was  consummated 
before  the  joint  interest  and  consequent  joint  risk  was  m 
existence.     Thus(9r)  where  several  persons  agreed  upon 
a  maritime  adventure,  and  to  provide  a  cargo  of  goods, 
which  should,  in  the  judgment  of  the  majority,  be  proper 
for  the  voyage;  and  permission  was  given  to  the  super- 
cargo (who  was  to  have  a  proportionate  profit  and  bear 
an  equal  loss  with  the  respective  adventurers)  to  ship,  on 
the  joint  account,  as  many  goods  as  he  might  think  fit ; 
such  goods  being  first  approved  by  a  majority  of  the  per- 
sons concerned  in  the  adventure,  as  proper  for  the  voy- 
age ;  and  it  was  afterwards  agreed,  that  each  party  was 
to  hold  no  other  share  or  proportion  in  the  adventure 
than  the  amount  of  what  each  separately  ordered  and 
shipped ;  and  that  the  orders  given  for  the  cargo  and 
outfit  of  the  ship  were  to  be  separately  paid,  and  that 

( p)  Sandilands  v.  Marsh,  2  B.  &  A.  673. 
(q)  SaviUe  V.  Robertson,  4  T.  R.  720. 


(1)  During  the  continuance  of  a  partnership,  the  only  ostensible 
partner  carried  on  the  business  of  the  partners  in  the  same  name  as  that 
in  which  he  transacted  his  private  business,  and  in  that  name  contracted 
a  debt  for  money  borrowed  ;  but  it  did  not  appear  whether  the  money 
was  borrowed  for  the  partnership,  or  his  private  use  ;  held  that  m  the 
absence  of  evidence,  the  presumption  of  law  was,  that  the  loan  was 
made  on  the  credit  of  the  partnership  business.  Mifflin  v.  Smith  et  at. 
17  Serg.  <fe  Rawle,  165. 


151  LEGAL  REMEDIES 

one  was  not  to  be  bound  for  any  goods  or  stores  ordered 
or  shipped  by  the  other ;  and  that  the  supercargo  should 
have  free  hberty  to  ship  what  goods  were  suitable  to  the 
voyage,  over  and  above  the  ship  and  outfit,  leaving  room 

for  those  ordered  by  the  adventurers,  and  that 
[  152  ]    the  *ship  should  be  made  over  in  trust  for  the 

general  concern :  it  was  held,  that  if  the  super- 
cargo afterwards  purchased  goods,  as  part  of  the  cargo, 
and  the  ship  sailed  with  the  goods  so  purchased,  he  alone 
was  liable  for  them,  and  not  his  co-adventurers  jointly 
with  him.  The  reason  on  which  this  determination  pro- 
ceeded seems  to  have  been,  that  after  the  purchase  of  the 
goods  made  by  the  several  adventurers,  there  was  still, 
before  they  became  joint  property,  a  further  act  to  be 
done,  which  was  the  putting  them  on  board  the  ship  in 
which  they  had  a  common  concern  for  the  joint  adven- 
ture, and,  until  that  further  act  was  done,  the  goods  pur- 
chased by  each  remained  the  separate  property  of  the 
purchaser.  The  partnership  in  the  goods  did  not  arise 
until  their  admixture  in  the  common  adventure.(l)  So 
where  one  person  purchases  goods,  and  another  is  after- 
wards permitted  to  share  in  the  adventure,  the  vendor 
cannot  maintain  an  action  against  the  latter  for  the  price 
of  the  goods.(r)  But  where  two  or  more  persons  are  to 
share  in  goods  to  be  purchased,  and,  by  virtue  of  a  pre- 
vious agreement,  a  joint  interest  in  the  goods  attaches 
the  instant  they  are  purchased,  there,  although  one  of 
them  make  the  purchase,  concealing  at  the  time  the 
names  of  the  others,  or,  in  fact,  without  any  express 
authority  from  them  to  purcliase  on  the  joint  account,  it 

(r)  Young  V.  Hunter,  4  Taunt.  582.  In  Greenslade  v.  Dower,  7 
Barn,  &  Cres.  635.,  Bayley,  J.  observed,  that  there  was  a  great  differ- 
ence between  a  bill  accepted  by  one  partner  in  the  name  of  the  partner- 
ship in  the  course  of  their  trading,  and  one  drawn  for  the  purpose  of 
founding  the  partnership.  "  Originally,  each  partner  would  have  to 
bring  in  his  proportion  of  the  capital,  and  it  would  be  very  unjust  to  let 
the  acceptance  of  one  for  the  capital  bind  all  the  others ;  no  authority 
of  that  nature  can  be  implied,  nor  does  it  arise  by  operation  of  law,  the 
debt  not  being  a  partnership  debt." 


(1)  See  Sims  v.  TVilling  et  al.  8  Serg.  &  Rawle,  103.     Post  v. 
Kimherly,  9  Johns.  Rep.  470. 


AGAINST    PARTNERS.  152 

is  nevertheless  the  same  as  if  all  the  names  had  been 
announced  to  the  seller,  and  therefore  all  are  liable  for 
the  value  of  them.  This  question  arose  in  a  late  case,(s) 
M^here  it  appeared  that  a  creditor,  having  been  jointly  con- 
cerned with  his  debtor  in  a  foreign  adventure,  in  respect  of 
the  advances  on  which  the  latter  became  indebted  to  the 
former,  the  creditor,  with  a  view  to  liquidate  his  demand, 
agreed  with  his  debtor  to  join  with  him  in  a  similar  ad- 
venture, of  which  he  was  to  have  a  moiety,  and  to  bear 
his  proportion  of  the  loss;  and  it  was  likewise  agreed 
that  the  debtor  should  purchase  and  pay  for  goods  for  the 
adventure,  and  the  returns  should  be  made  to  the  creditor 
to  go  in  liquidation  of  his  debt :  under,  and  in  further- 
ance of  this  agreement,  the  debtor  purchased 
*goods  for  the  adventure  on  credit,  and  it  was  [*153  ] 
decided  by  the  Court  of  King's  Bench,  in  an  ac- 
tion brought  by  the  seller  against  both  the  creditor  and 
debtor,  that  inasmuch  as  the  goods  were  purchased  in 
pursuance  of  the  agreement  for  the  adventure,  in  which 
it  was  stipulated  and  arranged  that  the  creditor  was  to 
have  an  interest,  he  was  jointly  answerable  for  their 
price.(/)  (1)  It  is  not,  however,  sufficient  to  constitute 
a  joint  liability  for  the  capital  brought  into  the  trade 
that  there  is  to  be  a  subsequent  participation  in  the  profit 
derived  from  it.  In  such  a  case  the  right  to  participa- 
tion can  only  take  its  origin  from  the  time  of  the  intro- 
duction of  the  capital;  and,  although  communion  of 
profit  is  a  strong  circumstance  to  explain  a  contract  in 
itself  doubtful,  and  to  show,  as  the  legal  presumption  is, 
that  a  partnership  existed  at  the  time  amongst  the  par- 

(a)  Gouthwaite  v.  Duckworth,  12  East,  424. 

{t)  In  the  case  of  Young  v.  Hunter,  4  Taunt.  583,  Gibbs,  .T. ,  is  re- 
ported to  have  said,  "  I  am  by  no  means  of  opinion  that  there  may 
not  be  a  case  where  two  houses  sliall  be  interested  in  goods  from  the 
beginning  of  the  purchase,  yet  not  be  both  liable  to  the  vendor :  as  if 
the  parties  agree  amongst  themselves  that  one  house  shall  purchase  the 
goods  and  let  the  other  into  an  interest  in  them,  that  other  being  un- 
known to  the  vendor ;  in  such  a  case,  the  vendor  could  not  recover 
against  him,  although  such  other  person  would  have  the  benefit  of  the 
goods." 

(1)  SeeFelichy  v.  Hamilton,  1  Wash.  C.  C.  Rep.  491. 


153  LEGAL   REMEDIES 

ticipants ;  yet,  where  the  nature  of  the  contract  clearly 
appears,  it  cannot  have  such  a  retrospect  as  to  alter  it, 
and  to  substitute  the  responsibility  of  several  for  that  of 
an  individual  contractor.  Therefore,  if  several  persons 
agree  to  form  a  partnership,  and  that  each  shall  contri- 
bute a  certain  share  of  the  capital,  and  any  of  the  per- 
sons borrow  or  purchase  the  share,  which  is  by  him  af- 
terwards brought  into  the  common  stock,  the  liability 
for  payment  to  the  lender  or  vendor  is  not  joint  but  per- 
sonal.(w)  (1)  Nor  can  a  liability  as  partner  attach 
where  there  is  neither  a  communion  of  profit  nor  a  joint 
interest  in  the  article  purchased,  but  the  purchase  is 
made  by  one  person  upon  an  agreement  between  him 
and  other  persons,  that  each  shall  have  a  distinct  share 
of  the  whole.  Thus,  where  several  different  persons 
separately  employed  a  broker  to  make  purchases  of  tea 
at  the  hidia  House,  and  the  broker,  upon  payment  of  the 
usual  deposit,  made  the  purchases  and  took  joint  war- 
rants for  the  whole,  which  he  pledged  to  a  banker  as  a 

security  for  monies  advanced ;  it  was  held,  that 
[*154]  such  an  employment  did  not  constitute  a  *part- 

nership  amongst  the  employers,  so  as  to  render 
them  either  jointly  or  separately  liable  for  the  loan.(i?)  (2) 

(m)  Per  Lord  Kenyan  and  Grose,  J.,  in  Saville  v.  Robertson,  4  T. 
R.  720.  See  also  Gouthwaite  v.  Duckworth,  12  East,  421.  Green- 
slade  V.  Dower,  7  Barn.  &  Cres,  635. 

[v)  Hoare  v.  Dawes,  1  Dougl.  371. 


(1)  Per  Thompson,  J.  Post  v.  Khnberly,  9  Johns.  Rep.  489.  See 
Sylvester  v.  Smith,  9  Mass.  Rep.  119.  And  if  a  co-partner  take  mo- 
ney out  of  the  funds  of  the  co-partnership,  and  carries  it  into  a  new 
concern  or  trading  house,  which  becomes  bankrupt,  the  fund  cannot  be 
followed  specifically,  so  as  to  give  the  former  co-partnership  a  priority 
over  the  other  creditors  of  the  bankrupt  house.  McCauley  v.  McFar- 
lane  et  al.  2  Desaus.  Cha.  Rep.  239  And  where  partners  pay  mo- 
ney on  a  business  foreign  to  the  partnership  concern,  though  With 
their  joint  funds,  this  is  pro  tanto  a  severance  of  their  funds;  and  if 
paid  as  sureties,  the  law  implies  a  promise  to  each  according  to  his 
several  interest.  Gould  v.  Gould,  8  Cow.  Rep.  168.  S.  C.  6  Wend. 
Rep.  263,  in  error,  judgment  affirmed. 

(2)  Holmes  v.  The  United  States  Ins.  Company,  2  Johns.  Cas. 
329.  United  States  Ins.  Company  v.  Scott  et  al.  1  Johns.  Rep.  106, 
See  Jackson  v.  Robinson,  3  Mason's  Rep.  138. 


AGAINST   PARTNERS.  154 

The  same  rule  applies  to  a  contract  made  by  one  person 
for  the  purchase  of  goods,  and  a  sub-contract  made  by 
him  Avith  others  for  taking  particular  shares ;  this  sub- 
division of  his  beneficial  interest,  under  the  original  con- 
tract, does  not  render  the  persons  claiming  under  him 
responsible  jointly  with  himself  for  the  performance  of 
the  contract.(z^5)     For  instance,   where  tbree   persons 
entered  into  an  agreement  to  purchase  goods  in  the 
name  of  one  only,  and  to  take  aliquot  shares  of  the  pur- 
chase, but  it  did  not  appear  that  they  were  jointly  to 
resell  the  goods,  the  Court  of  Common  Pleas  held,  that 
on  the  failure  of  the  ostensible  buyer,  the  others  were 
not  answerable  as  partners  with  him.(.r)     And,  in  addi- 
tion to  the  possession  of  a  joint  interest,  it  is  requisite, 
to  render  a  firm  responsible,  that  credit  should  be  given 
to  them  collectively ;  for  if  the  separate  liability  of  a 
single  partner  is  alone  originally  regarded,  the  joint  re- 
sponsibility cannot  afterwards  be  substituted.  Therefore, 
where  one  of  two  partners  drew  bills  of  exchange  in  his 
own  name,  which  he  procured  to  be  discounted  by  the 
same  banker  who  had  discounted  other  bills  drawn  in 
the  joint  name,  it  was  held  that  the  banker  had  no 
remedy  against  the  partnership,  either  upon  the  bills  so 
drawn  by  the  single  partner,  or  for  money  had  and  re- 
ceived through  the  medium  of  such  bills,  the  proceeds 
being  carried  to  the  partnership  account;  and  that  it 
made  no  difference,  that  the  banker,  at  the  time  he  dis- 
counted, conceived  that  all  the  bills  were  drawn  on  the 
partnership  account,  since  the  money  was  advanced,  by 
way  of  discount,   solely  on   the    security  of  the  par- 
ties whose  names  were  on  the  bills,  and  not  by  way 
of  loan   to  the  partnership.(y)     So  where   in  an    ac- 
'  tion  for   the  supply  of  articles  to  be  used  in   mines, 
whereof  the   defendant  was  a  shareholder,  it 
*appeared,  that   the  defendant  had  only  paid  [*155] 
for  the  shares  to  a  person  calling  himself  trea- 

[tv)  Coope  t'.  Eyre,  1  H.  Bl.  37.  {x)  Id.  Ibid. 

(t/)  Emly  V.  Lye,  1.5  East,  7.  See  also  Siffkin  v.  Walker,  2  Camb. 
:^08.  JEx  parte  Boliiho,  Buck.  100.  Where,  with  the  privity  of  one 
partner,  a  bill  is  drawn  by  the  other  upon  the  firm,  but  it  is  not  accept- 
ed, and  the  payee  discounts  it,  and  the  proceeds  are  applied  to  partner- 

27 


151  LEGAL  REMEDIES 

surer,  and  received  a  certificate  purporting  to  be  exe- 
cuted "  by  order  of  the  directors ;"  that  she  was  a  pro- 
prietor in  certain  shares,  and  her  name  duly  registered, 
<Sz;c.,  and  that  she  was  entitled  to  the  profits  of  such 
shares;  and  it  also  appeared  that,  at  the  time  of  the 
supply,  the  plaintiflf  had  no  knowledge  or  reason  to  sup- 
pose the  defendant  in  any  way  interested  in  the  mine,  nor 
had  he  supplied  the  goods  on  her  personal  credit ;  it  was 
determined  that  he  could  not  maintain  the  action  against 
her.(2-)  And  where  previous  to  the  actual  formation  of 
a  company,  a  prospectus  signed  by  the  defendant  was 
issued,  indicating  that  it  was  in  contemplation  to  form 
the  company;  and  it  appeared  the  defendant  solicited 
others  to  become  shareholders,  and  was  present  at  a 
meeting  of  subscribers  when  it  was  proposed  to  take 
certain  premises  for  the  purpose  of  carrying  on  the  con- 
cern, which  were  afterwards  taken,  but  he  never  paid  his 
subscription ;  it  was  determined  he  was  not  chargeable 
as  a  partner  for  goods  supplied  to  the  company,  the 
prospectus  not  importing  that  he  had  become  a  partner 
in  a  partnership  then  formed.(a)  But  Lord  Tenterden 
has  ruled,  that  where  one  member  of  a  club  ordered 
goods  for  the  benefit  of  all,  every  member,  who  either 
concurred  in  the  order,  or  subsequently  assented  to  it, 

ship  purposes,  he  may  sue  both  partners  for  money  lent,  or  money  had 
and  received,  notwithstanding  they  are  not  jointly  liable  on  the  bill. 
Denton  v.  Rodie,  3  Campb.  493.  But  where  a  firm,  consisting  of 
several,  carry  on  business  in  the  name  of  an  individual  partiier,  the 
whole  firm  will  be  bound  by  his  acceptance  or  indorsement  in  tne  way 
of  the  joint  business.  South  Carolina  Bank  v.  Case,  8  B.  &  C.  427. 
S.  C.  2  Mann.  &  Ryl.  459.  1  Dans.  &  Lloyd,  103.  (1) 

{z)  Vice  V.  Viscountess  Anson,  7  B.  &  C.  409.  ^.  C.  1  Mann.  & 
Ryl.  113. 

(a)  Bourne  v.  Freeth,  9  B.  &  C.  632. 


(1)  See  Doitgal  v.  Coivles  et  al.  5  Day's  Rep.  511.  It  was  decided 
in  this  case,  that  the  act  of  drawing  a  bill  of  exchange  by  one  partner, 
in  his  own  name,  upon  the  firm  for  the  use  of  the  partnership  concern, 
was,  in  contemplation  of  law,  an  acceptance  of  the  bill  by  the  drawer 
in  behalf  of  the  firm ;  and  that  the  holder  of  the  bill  might  sustain 
an  action  thereon,  as  for  a  bill  accepted.  Van  Reimsdyk  v.  Kane 
et  al.  1   Gallis.  Rep.  630. 


AGAINST    PARTNERS.  155 

was  liable,  although  the  member  who  ordered  the  goods 
was  made  the  debtor  in  the  tradesman's  books ;  unless  it 
clearly  appeared  that  the  tradesman  meant  to  give  credit 
to  that  member  only.(6)    And  in  a  late  case,  in  which  it 
was  proved  that  A  had  contributed  to  the  funds  of  a 
building  society,  and  had  been  present  at  a  meeting  of 
the  society,  and  party  to  a  resolution  that  certain  houses 
should  be  built ;  the  Court  of  King's  Bench  held,  that 
this  made  him  liable  for  work  done  in  building  the 
houses,  without  proof  that  he  had  any  actual  interest  in 
them,  or  in  the  land  on  which  they  were  built.(c)     So 
where  in  an  action  against  two,  for  goods  supphed  to  a 
mining  company,  originated  in  fraud,  but  of  which  the 
jury  found  the  defendants  to  have  been  ignorant,  it  ap- 
peared, that  they  had  never  signed  the  partner- 
ship deed,  and  had  ^transferred  their  scrip  be-  [*156] 
fore  the  action  brought ;  but  both  had  attended 
a  meeting  of  the  company,  and  it  was  held  that  they 
were  hable.(rf)    And  where  the  two  requisites  of  a  joint 
interest  and  a  joint  credit  concur,  nothing  but  actual 
satisfaction,  or  the  extinguishment  of  the  original  con- 
sideration, by  the  acceptance  of  a  higher  security  from 
an  individual  partner,  can  invalidate  the  claim  which  the 
creditor  possesses  against  the  firm.(l)  The  partners,  by  a 
private  arrangement,  as  is  most  frequently  done  in  cases 
of  dissolution,  may  stipulate  that  one  of  them  only  shall 
discharge  the  joint  demands;  but  such  an  arrangement 
is  not  binding  upon  the  creditor,  even  although  he  as- 
sents to  it,  and,  in  confirmation  of  his  assent,  takes  col- 
lateral securities  from  the  individual  partner  for  the  joint 
debt.     For  the  acceptance  of  a  security,  not  under  seal, 
from  a  debtor,  on  account  of  his  debt,  does  not  extin- 

(6)  Delauney  v.  Strickland,  2  Stark.  N.  P.  C.  416. ;  and  see  Wil- 
liams  V.  Nunn,  1  Taunt.  270. 

(c)  Braithwaite  v.  Skofield,  9  B.  &  C.  401. 

[d)  Ellis  V.  Schmoeck,  5  Bingh.  521. ;  and  see  Perring  v.  Hone,  4 
Bingh.  28. 


(1)   Sneed  v.  Weister  et  al.  2  Marsh.  Rep.  (Kentucky,)  285,  286. 


156  LEGAL   REMEDIES 

guish  or  affect  the  debt,  but  the  creditor  is  still  entitled 
to  sue  for  it,  provided  he  does  not  receive  the  money,  for 
which  the  security  is  given,  upon  the  security.  Where 
indeed,  after  a  joint  security  has  been  given,  the  credi- 
tor, without  the  knowledge  of  one  partner,  renews  it, 
and  consents  to  take  the  separate  security  of  the  other 
partner  in  discharge  of  the  joint  debt,(e)(l)  or  where 
the  other  members  of  the  firm  sustain  a  detriment  by  the 
creditor's  dealing  with  a  single  partner,  as  if,  on  the  faith 
of  such  dealing,  they  permit  the  single  partner  to  receive 
monies  which  otherwise  they  would  have  withheld  ;(y ) 
in  such  cases,  it  seems,  the  joint  liability  would  be  ex- 
tinguished. But  except  in  those,  and  similar  instances, 
nothing  but  payment  can  controul  the  right  of  the  cre- 
ditor to  enforce  his  demand  against  all  the  members  of 
the  firm.  Thus,  where  one  of  two  partners  apphed  trust 
money  in  the  trade,  with  the  privity  of  the  other  partner, 
and  having  afterw^ards  separated,  the  partnership  effects 
were  assigned  to  the  former  partner,  who  undertook 
to  discharge  the  joint  debts ;  it  was  held  that  this  private 
arrangement  did  not  operate  to  discharge  the  retiring 
partner,  but  that  both  were  liable  to  reimburse  the  trust 
money.(^)(2)  So  where,  on  the  dissolution  of 
[  *157  ]  a  ^partnership,  it  was  agreed  between  two  part- 
ners, that  one  should  take  upon  himself  to  dis- 

(e)  Evans  v.  Diummond,  4  Esp.  N.  P.  C.  89.  But  see  Ex  parte 
Hodgkinson,  19  Ves.  295. 

(/)  Reed  v.  While,  5  Esp.  N.  P.  C.  122. ;  and  see  Wyatt  v.  The 
Marquis  of  Hertford,  3  East,  147. 

{g)  Smith  V.  Jemeson,  5  T.  R.  601. 


(1)  Harris  et  al.  v  Lindsay,  4  Wash.  C.  C.  Rep.  98.  271.  A.  hav- 
ing an  account  on  book  against  B.  and  C.  who  were  partners,  received 
from  them  a  bill  of  exchange,  which,  when  paid,  was  to  be  in  full  of 
the  account ;  this  bill  being  protested,  B.,  after  the  dissolution  of  the 
partnership,  took  it  up  with  A.'s  receipt  thereon  in  these  words — "  Re- 
ceived the  within  amount  by  bill  on  J.  A."  Held,  in  an  action  against 
B.  and  C.  on  the  original  demand,  no  evidence  was  admissible  to  show 
that  the  latter  bill  had  not  been  paid.  Anderson  v.  Henshaw  2  Day's 
Rep.  272. 

(2)  See  Mortimer  v.  Caldwell  et  al.  Kirby's  Rep.  53. 


AGAINST  PARTNERS.  157 

charge  a  debt  due  to  a  creditor,  who  was  informed  of  it, 
and  expressly  undertook  to  exonerate  the  other  partner 
from  all  responsibility ;  it  was,  nevertheless,  determined 
that,  as  there  was  no  consideration  for  the  promise  of 
the  creditor,  this  arrangement  did  not  constitute  any  de- 
fence to  any  action  brought  by  him  against  both  part- 
ners, the  debt  not  being  satisfied  by  the  one,  nor  any 
new  security  having  been  given.(A)(l)  And  where  one 
of  three  partners,  after  a  dissolution  of  partnership,  un- 
dertook by  deed  to  pay  a  particular  partnership  debt  on 
two  bills  of  exchange,  which  was  communicated  to  the 
holder,  who  consented  to  take  the  separate  notes  of  the 
one  partner  for  the  amount,  but  with  a  strict  reservation 
of  his  right  against  all  the  three  partners,  and  a  reten- 
tion of  the  original  bills;  the  separate  notes  having 
proved  unproductive,  it  was  held  that  he  might  still  re- 
sort to  his  remedy  against  the  other  partners,  and  that 
the  taking  under  these  circumstances  the  separate  notes, 
and  even  afterwards  renewing  them  several  times  suc- 
cessively, did  not  amount  to  satisfaction  of  the  joint 
debt.(f)(2)  In  like  manner,  where  one  of  three  partners 
retired,  and  notice  was  given  to  a  creditor  of  the  firm 
that  the  remaining  partners  had  assumed  the  funds,  and 
would  discharge  the  partnership  debts,  the  creditor  as- 
sented to  this  agreement,  and  transferred  the  debts  due 
from  the  old  firm  to  the  credit  of  the  new  firm,  and  af- 
terwards drew  on  the  new  firm  for  a  part  of  his  balance, 
which  was  paid;  but  the  new  firm  subsequently  be- 
coming insolvent,  he  brought  an  action  for  the  remain- 
der against  all  the  members  of  the  old  firm,  and  it  was 
held  that  the  retiring  partner  was  liable  for  all  debts  in- 
curred before  the  dissolution  of  the  partnership.(^)  On 
the  same  principle,  where  a  firm  of  four  partners  were 
indebted  on  a  dishonoured  bill  of  exchange,  and  having 

(h)  Lodge  V  Dicas,  3  B.  &  A.  611. 

(i)  Bedford  v.  Deakin,  2  B.  &  A.  210.  S.  C.  2  Stark.  N.  P.  C.  178. 

(k)  David  v.  Ellice,  5  B.  &  C.  196.     S.  C.  7  D.  &  R.  690. 


(1)  Barker  et  al.  v.  Blake,  11  Mass.  Rep.  16. 

(2)  f^mith  et  al.  v.  Posters  et  al.  17  Johns.  Rep.  340. 


157  LEGAL  REMEDIES 

afterwards  dissolved  the  partnership,  a  new  firm  was 
formed  of  three  of  them,  and  the  holder  of  the  bill  in- 
dorsed it  over  to  the  latter  firm,  in  order,  if  possi- 
ble, to  obtain  payment  of  it ;  and  whilst  the  bill  was  in 
their  possession,  the  three  settled  their  accounts  with 
the  fourth  partner,  saying  that  the  bill  had  been  satisfied 
by  them,  but  the  bill  itself  was  not  produced  to,  or  seen 

by,  the  fourth  partner  at  the  time  of  such  settle- 
[  *158  ]  ment :  it  was  held,  that  this  *was  no  defence  to 

the  fourth,  in  an  action  by  the  holder  against 
all  the  partners,  the  bill  not  having  been,  in  fact,  satis- 
fied by  the  persons  to  whom  it  had  been  indorsed  and 
handed  over.(/)  Neither  is  the  responsibility  attaching 
upon  partners,  when  once  it  is  incurred,  varied,  or  alter- 
ed, by  the  secession  of  some  of  the  old,  and  the  admis- 
sion of  new  members,  although  the  creditor  continue  to 
deal  with  the  newly  constituted  firm  for  a  length  of  time 
without  notice  to  the  retiring  partners  that  he  holds 
them  responsible.  For  instance,  a  person  depositing 
money  with  bankers,  and  taking  their  accountable  re- 
ceipts, does  not,  by  continuing  to  leave  his  money  in  the 
bank,  after  a  dissolution  of  the  original  firm  and  the 
constitution  of  a  new  one,  which  consists  of  some  of  the 
members  of  the  old  bank,  and  other  persons,  discharge 
the  partners  who  have  seceded,  although  he  receives 
interest^  regularly  from  the  new  firm,  gives  them  no 
notice,  and  continues  to  transact  business  with  them  in 
the  usual  and  ordinary  course,  for  a  period  of  four  years, 
until  they  become  insolvent.(m)(l)  In  the  exposition  of 
the  statute  5  Eliz.  c.  4,  it  has  been  determined,  that,  if 
a  person  qualified  to  trade,  by  having  served  as  an  ap- 
prentice, unite  himself  in  partnership  with  an  unqualified 

(/)  Featherstone  v.  Hunt,  1  B.  &  C.  113. 

(m)  Gough  V.  Davies,  4  Price,  200.  And  see  Sleech's  case,  1 
Meriv.  563.  It  seems  that  the  old  firm  would  continue  liable  although 
the  old  debt  was  carried,  with  the  privity  of  the  customer,  into  the 
books  of  the  new  firm,  and  placed  as  an  item  in  their  account  to  the 
credit  of  the  customer.     Gough  v.  Davis,  supra. 


(1)  David  V,  Ellice  et  al.  7  Dowl.  &  Ryl.  690.  S.  C.  5  Barn.  & 
Cresw.  196.     1  Carr.  &  Payne,  368. 


AGAINST  PARTNERS.  158 

person,  whenever  exercises  the  trade,  but  only  shares 
the  profits  and  the  risks  of  the  partnership ;  such  un- 
quahfied  person  is  not  subject  to  the  penalties  imposed 
upon  a  party  who  carries  on  a  trade  without  having 
served  as  an  apprentice.(?0     In  a  former  part(o)  of  this 
work  it  has  been  observed,  that  where  there  are  several 
partnerships  consisting  partly  of  the  same   members, 
carryinii  on  business  under  the  same  name,  and  entering 
into  negotiable  securities  under  the  same  signature,  the 
holder  of  one  of  such  securities,  without  notice  that  it 
was  issued  by  either  of  the  partnerships  in  particular, 
has  a  right  to  elect  against  which  firm  he  will  enforce 
it.     And  it  may  here  again  be  remarked,  that  a  nominal 
partner  who  is  excluded  from  a  participation  in  profit, 
and  stipulates  for  an  indemnity  against  loss,  will 
not  be  responsible,  in  his  character  of  *  partner,  [  *159  ] 
to  such  claimants  upon  the  firm  as  are  apprized 
of  the  stipulation. (/?) 

In  an  action  against  an  individual,  he  cannot  object 
that  the  contract,  attempted  to  be  enforced,  is  rendered 
illegal  by  reason  of  the  existence  of  a  secret  partnership 
between  himself  and  another  person.  For  instance,  if, 
before  the  late  statute,  the  name  of  a  single  under-writer 
appeared  upon  a  policy  of  insurance,  the  insurer  would 
not  have  been  allowed,  if  a  loss  happened,  to  defeat  a 
bona  jide  insurance,  by  urging,  in  answer  to  an  action 
brought  by  the  assured  upon  the  policy,  that  a  secret 
partnership  existed  between  himself  and  another  at  the 
time  of  its  subscription,  and  consequently  that  it  was 
void.(9)  Where,  indeed,  a  person  professing  to  engage 
only  his  own  individual  capital,  pledged  himself  as  such 
to  the  assured,  it  would  be  unjust,  if  he  had  been  per- 
mitted to  set  up  a  secret  partnership  in  avoidance  of  the 
policy  subscribed  by  himself  singly.(r)     Neither  can  a 

(n)  Rayiiard  v.  Chase,  2  Wils.  40.     S.  C.  1  Burr.  2. 

(o)  See  ante,  p,  48. 

(p)  Aklerson  v.  Pope,  1  Campb.  408. 

Iq)  Sullivan  v.  Greaves,  Park  on  Insur.  8 

(r)  See  dicta  of  Lord  Kenyan  and  Lawrence,  J.,  in  Booth  v.  Hodg- 
son, 6  T.  R.  405.  See  also  dictum  of  Heath,  J.,  in  Mitchell  v.  Cock- 
burn,  2  H.  Bl.  379.  Partners  cgin  now  jointly  underwrite  a  policy  of 
insurance.     See  5  Geo.  4.  c.  114.,  and  ante,  p.  29. 


159  LEGAL  REMEDIES 

partner  set  up  a  known  partnership  in  abatement  of  a 
demand  made  upon  himself  individually,  in  a  case  in 
which  his  conduct  has  been  fraudulent,  both  as  regards 
his  co-partners,  and  the  person  who  endeavours  to  fix 
him  singly.  Therefore  where,  to  an  action  against  one 
of  several  partners  for  not  delivering  goods  with  a  count 
for  money  had  and  received,  the  defendant  pleaded  the 
non-joinder  of  his  co-partners,  and  it  appeared  that  the 
defendant,  being  in  partnership,  made  the  contract  indi- 
vidually, but  in  the  joint  name,  and  for  the  sale  of  joint 
property,  and  that,  in  fraud  of  his  partners,  he  received 
the  money  and  applied  it  to  his  own  use,  it  was  held  that 
though  the  bill  drawn  for  the  amount  of  the  goods  was 
in  the  joint  name,  yet  the  plaintiff  might  recover  the 
money  paid  in  discharge  of  the  bill  under  the  common 
count.(s)(l) 

The  responsibility  of  partners  to  third  persons  is  not 
alone  confined  to  cases  of  contract.  In  actions  quasi 
ex  contractu,  and  in  actions  of  tort,  they  are  in  some  in- 
stances jointly  answerable  to  the  injured  party  in 
[  *160  ]  damages.  In  the  former  species  of  action,  *which 
is,  in  its  form,  an  action  of  tort,  although  sub- 
stantially an  action  founded  upon  a  contract,  partners 
are  clearly  responsible.  Thus,  in  the  common  case  of 
a  co-partnership  amongst  persons  as  carriers,  if,  in  the 
course  of  their  business,  they  receive  a  parcel  to  be 
carried  by  them  for  hire,  and  the  parcel  be  lost,  they 
are  unquestionably  liable  in  an  action  upon  the  implied 
contract,  that  they  would  safely  and  securely  carry  it.  And 
it  can  make  no  difference,  as  it  regards  their  liability,  if 
the  owner,  instead  of  considering  the  loss  as  forming  a 
breach  of  promise,  implied  from  the  consideration  of 
hire,  chooses  to  allege  his  gravamen,  as  consisting  in  a 
breach  of  duty  arising  out  of  an  employment  for  hire, 
and  to  consider  that  breach  of  duty  ^as  tortious  negli- 

(s)  Hudson  V.  Robinson,  4  Man.  &l  Selw.  475. 


(1)  See   Sylvester  et  al.    v.   Smith,  9  Mass.  Rep.   119.     Clark  \, 
Holmes,  3  Johns.  Rep.  148. 


AGAINST  PARTNERS.  160 

gence.(^)  The  principle  in  either  case  is  the  same ;  and, 
although  the  form  of  action  which  is  adopted  cannot 
vary  or  alter  the  liability  of  the  partners,  it  has  given 
rise  to  questions  which  we  shall  have  occasion  hereafter 
to  discuss.(l) 

Actions  of  tort  may  likewise,  in  some  cases,  be  effec- 
tually sustained  against  partners.  Their  responsibility 
in  actions  of  this  description  may  be  exemplified  by  the 
familiar  instances  of  actions  brought  against  them  for 
driving  against  carriages  or  running  down  ships.  In 
those  cases,  if  the  carriage  or  ship,  occasioning  the  in- 
jury be  the  joint  property  of  partners,  it  is  immaterial 
whether  it  be  under  the  direction  or  guidance  of  one  of 
the  partners  or  of  their  servant,  because  the  maxim  of 
law  is  qui  facit  per  alium  facit  per  se ;  and  partners, 
like  individuals,  are  responsible  for  the  negligence  of 
their  servants.(w)  (2)  And  where  it  appeared  that  A  and 
B  were  partners  in  the  business  of  public  carriers,  and  that 
by  agreement  between  them,  A  provided  horses  and 
drivers  for  certain  stages,  and  B  for  the  re- 
mainder; *it  was  holden,  that,  notwithstand-  [*161] 

(t)  Govett  V.  Radnidge,  3  East,  62.  Powell  t;.  Layton,  2  New  Rep. 
372.  Boson  v.  Sandlbrd,  Skin.  278.  S.  C.  3  Lev.  258.  Garth.  58  ; 
but  more  fully  reported  2  Show.  478. 

(m)  Mitchell  v.  Tarbutt,  5  T.  R.  649.  Where  damages  are  sought 
to  be  recovered  against  partners  for  an  injury  sustained  through  the 
negligent  conduct  of  their  servant,  the  proper  remedy  is  an  action  on 
the  case.  Morley  v.  Gaisford,  2  H.  Bl.  442.  Huggett  v.  Montgomery, 
2  N.  R,  446. ;  and,  if  the  cause  of  the  mischief  be  negligence,  such  an 
action  will  lie  against  all  the  partners,  although  one  of  them  be  per- 
sonally present  and  acting  in  that  which  occasions  it.  But  where  the 
injury  is  inflicted  by  the  wilful  act  of  one  of  the  partners,  trespass  is 
the  proper  form  of  action  against  him  ;  and  if  under  the  circumstances 
any  action  will  be  against  the  other  partners,  case  only  can  be  sus- 
tained. See  Leame  v.  Bray,  3  East,  593.  Ogle  v.  Barnes,  8  T.  R. 
188.  Rogers  v.  Imbleton,  2  N.  R.  17.  Moreton  v,  Hardern,  4  B.  & 
C.  223. 


(1)  Walcott  v.  CanfieU  et  al.  3  Conn.  Rep.  194. 

(2)  So  for  falsely  and  fraudulently  recommending  an  insolvent  per- 
son as  worthy  of  credit,  whereby  the  plaintifls  (who  were  also  part- 
ners) were  induced  to  trust  him  with  goods,  which  the  defendants 
immediately  atlachod.  Patten  ct  al.  v.  Gurncy  ct  al.  17  Mass.  Rep. 
182.     See  Hacljicld  v.  Jameson,  2  Munf.  53. 

28 


161  LEGAL  REMEDIES 

ing  this  division  of  the  concern  between  them,  they 
were  responsible  for  the  misconduct  and  neghgence  of 
their  drivers  and  servants  throughout  the  whole  distance ; 
and  that  it  was  not  any  defence  to  B  that  the  servant, 
through  whose  negligence  an  injury  had  been  committed, 
had  been  hired  and  was  paid  by  A  alone.(v)  So,  in  an 
action  of  trover,  it  is  not  necessary  that  there  should  be 
a  joint  conversion  in  fact,  in  order  to  implicate  all  the 
partners ;  for  such  a  conversion  may  arise  by  construc- 
tion of  law.  Thus,  an  assent  by  some  of  the  partners 
to  a  conversion  by  the  others  will  make  them  WTong- 
doers  equally  with  the  rest,  provided  the  conversion  was 
for  their  use  and  benefit,  and  that  they  were  in  a  situa- 
tion to  have  originally  commanded  the  conversion ;  in 
such  a  case  the  rule  of  omnis  ratihabitio  retrotrahitur  et 
mandato  mquiparatur  applies.(w^)  (I)  And  if  co-partners 
are  engaged  in  smuggling,  which  is  a  species  of  tort,  on 
an  information  filed  for  the  penalty,  they  are  jointly,  as 
well  as  separately,  liable.(:c)  Indeed,  in  the  instance  of 
libels,  an  anomalous  case,  a  bookseller  or  the  proprie- 
tor of  a  newspaper  is  answerable  for  the  acts  of  his 
agent  or  co-partner,  not  only  civilly  but  criminally.(2/) 
But,  except  in  these  cases,  partners  are  not  generally 
responsible  for  the  wrongs  of  each  other.  If  they  all 
join  in  one  trespass  or  tort,  of  course  they  may  all  be 
sued,  and  compelled  to  make  compensation  for  the  in- 
jury they  have  committed :  but  an  action  for  such  a  mis- 
feasance would  arise  from  their  personal  misconduct,  and 
not  from  the  relation  of  partnership  subsisting  between 

(u)  Weyland  v.  Elkins,  Holt's  N.  P.  C.  227.  S.  C.  1  Stark,  N. 
P.  C. 272. 

{w)  4  Instit.  .317.  Cora.  Dig.  Tit.  Trespass,  C.  1.  And  see  Nicoll 
V.  Glennie,  1  Mau.  &  Selw.  588. 

(a;)  Attorney- General  v.  Burges,  Bunb.  223.  See  also  Rex  v.  Man- 
ning, Com.  Rep.  616. 

{y)  Rex  V.  Almon,  5  Burr,  2686.  Rex  v.  Pearce,  Peake's  N.  P. 
C.  75.  Rex  V.  Tophara,  4  T.  R.  126.  Per  Littledale,  J.,  Rex  r. 
Marsh,  2  Barn.  &  Cres.  723. 


(1)  Nisbet  et  al.  v.  Patton  et  al.  4  Rawle,  120.     See  Moreton  v. 
Harding  et  al.  6  Dowl.  &  Ryl.  275.  4  Barn.  &  Cresw.  223. 


AGAINST    PARTNERS.  161 

them.  With  regard  to  matters  quite  unconnected  with 
the  partnership  trade  or  business,  there  cannot  be  a  doubt 
but  that  a  joint  responsibihty  would  not  be  incurred  for 
a  tort  committed  by  an  individual  partner.  And,  in 
general,  acts  done  in  the  course  of  the  partnership  trade 
or  business,  in  violation  of  the  law,  will  only  implicate 
those  who  are  guilty  of  them.  If  one  of  two  bankers 
in  partnership  should  commit  usury  in  discounting  bills  ; 
or  if  one  of  two  surgeons  in  partnership  should  wantonly 
ill-treat  a  patient,  the  innocent  co-partners  would  not 
be  liable  to  an  action  for  penalties  or  damages. 
But  if  *an  attorney  be  in  partnership  with  another  [  *162  ] 
who  has  not  taken  out  his  certificate,  and  their 
joint  names  are  put  on  their  papers  in  causes  in  their 
office,  it  has  been  ruled,  that  either  of  them  is  liable  to 
the  penalties  imposed(z)  for  practising  as  an  attorney 
without  obtaining  a  certificate :  though  it  appear  that, 
by  a  private  arrangement,  the  party  sued  was  to  derive 
no  benefit  from  the  suit,  in  respect  of  prosecuting  which 
the  qui  tam  action  for  the  penalty  is  brought.(a)  The 
consequence  is,  and  it  has  accordingly  been  determined, 
that  two  attornies  or  proctors  cannot  be  sued  together, 
as  for  one  oflfence,  for  practising  without  a  certifi- 
cate, (i) 

We  have  hitherto  considered  the  liabilities  attaching 
upon  partners,  as  aflfecting  solely  those  partners  who  are 
ostensible.  The  same  rule,  however,  applies  to  a  dor- 
mant partner.  When  he  is  discovered,  he  is  equally 
liable  as  if  his  name  had  appeared  in  the  firm,  although 
unknown  to  be  a  partner  at  the  time  of  furnishing  the 
subject  matter  of  the  debt;(c)  (1)  and  an  action  may  be 
maintained  against  him  alone  upon  a  joint  contract,  if 

(z)  See  37  Geo.  3.  c.  90.  s,  26. 
[a)  Edmonson  v.  Davies,  4  Esp.  N.  P.  C.  14. 
h)  Barnard  v.  Gostling,  1  New.  Rep.  245.     S.  C.  2  East,  569. 
(c)  Robertson  v.  Wilkinson,  3  Price,  538.     Saville  v.  Robertson,  4 
T.  R.  725. 


(1)  2  Munf.  66.  8  Serg.  &  Rawle,  55.  4  Mass.  Rep.  426.  But 
the  law  merchant  respecting  dormant  partners  does  not  extend  to  spe- 
culations in  land.     Pitts  v.  Waugh,  4  Mass.  Rep.  424. 


162  LEGAL    RE3IEDIES 

he  do  not  avail  himself  of  the  legal  objection  arising 
from  the  nonjoinder  of  the  ostensible  partner,  by  plead- 
ing in  abatement.(c?)  The  liability  of  the  parties  depends 
upon  their  being  partners  at  the  time  the  contract  is 
made,  and  a  dormant  partner  cannot  set  np  the  plain- 
tiff's ignorance  of  his  being  a  partner  to  obviate  such 
liability.  Neither  is  it  any  security  to  him,  more  than 
to  an  ostensible  partner,  that  he  stipulated  that  his  co- 
partner should  carry  on  the  trade  at  his  own  separate 
risk,  and  that  he  should  not  be  answerable  for  any  of 
the  joint  debts  or  engagements. (e)  Even  those  acts 
done  by  a  creditor,  such  as  selecting  one  partner,  ac- 
cepting new  bills,  &c.  which  are  usually  held  to  operate 
the  discharge  of  the  other  partners,  will  not  liberate  an 
unknown  dormant  partner,  if  they  were  done  by  the  cre- 
ditor during  the  time  of  his  concealment,(y)  (1)     But 

(t?)  Per  Lord  Kenyan,  Saville  v.  Robertson,  4  T.  R.  724. 
(e)  Hubert  v.  Nelson,  Davies'  B.  L.  8. 
(/)  Robertson  v.  Wilkinson,  3  Price,  538. 


(1)  The  plaintifF,  Sheehy,  sold  certain  goods  to  Robert  B.Jamesson, 
and  took  his  note  for  the  amount,  which  he  put  in  suit,  and  prosecuted 
to  a  judgement.  Afterwards,  supposing  Joseph  Mandeville  to  be  a 
secret  partner,  he  instituted  a  suit  against  Mandeville  ^'  Jatnesson. 
The  declaration  contained  three  counts  ;  the  first  upon  the  note,  charg- 
ing it  to  have  been  made  by  the  defendants  under  the  name  and  style  of 
Robert  B.  Jamesson — the  second  and  third  counts  were  for  goods, 
wares,  and  merchandize  sold  and  delivered  to  the  defendants  trading 
under  the  firm  of  Robert  B.  Jamesson  The  defendant,  Mandeville, 
who  alone  appeared,  pleaded  two  pleas  in  bar.  The  first  went  to  the 
whole  declaration  ;  but  the  second  applied  to  the  first  count  only,  and 
pleaded  the  judgment  obtained  upon  the  note  against  Jamesson  in  bar. 
The  plaintifl['  demurred  specially  to  these  pleas.  The  Supreme  Court 
of  the  U)iited  States  gave  judgment  for  the  plaintiff  on  the  first  count, 
being  of  opinion  that  the  several  suit  and  judgment  against  Jamesson, 
was  no  bar  to  a  joint  action  against  both  Mandeville  and  Jamesson 
upon  the  same  note.  Sheehy  v.  Mandeville,  6  Cranch,  253.  The 
reasoning  of  Chief  Justice  Marshall,  who  delivered  the  opinion  of  the 
Court  in  that  case,  has  been  met  with  great  force  by  Chief  Justice 
Spencer  in  delivering  the  opinion  of  the  Supreme  Court  of  Neiv  York, 
in  the  case  of  Robertson  v.  Smith  et  al.  18  Johns.  Rep.  459.  In  that 
case,  the  plaintifli"  brought  an  action  of  assumpsit  against  S.  and  S.  as 
partners  under  the  firm  of  S.  &  S.  <fe  Co.  and  makers  of  a  promissory 
note,  and  recovered  a  judgment,  which  was  unsatisfied;  and  afterwards 
discovering  that  P.  &  V.  were  also  partners  in  the  firm  at  the  time  the 


AGAINST   PARTNERS.  162 

in  transactions  unconnected  with  the  joint  trade,  no  ha- 
bility  will  be  entailed  on  a  dormant  partner,  where  his 
responsibility  was  not  originally  regarded,  and  the  fact 


note  was  given,  he  brought  an  action  against  the  four,  as  makers  of  the 
same  note  :  and  it  was  held,  that  the  judgment  recovered  against  two 
of  the  defendants,  on  the  note  was  a  bar  to  the  subsequent  suit  against 
the  four  defendants,  for  the  same  cause  of  action.  See  also  Penny  v. 
Martin,  4  Johns.  Cha.  Rep.  586.  Willings  et  al.  v.  Consequa,  1 
Peters'  Rep.  301.  McFall  v.  Williams,  2  Serg.  &  Rawle,  280. 
Smith  v.  Black,  9  Serg.  &  Rawle,  142.  Doivney  v.  The  Bank  of 
Green  Castle,  13  Serg.  &  Rawle,  288.  Hortetter  v.  Kaufman,  11 
Serg.  &  Rawle,  1 46.  In  Virginia,  it  has  been  decided  that  in  equity 
it  is  competent  for  a  creditor  to  prove  that  his  claim  was  due  from  a 
partnership,  notwithstanding  he  may  have  taken  a  note  from  one  of  the 
partners  in  his  individual  name.  The  ground,  however,  upon  which 
the  creditor  was  enabled  to  proceed  in  a  Court  of  Equity  was,  the 
absence  from  the  State  of  one  of  the  partners,  which  prevented  the  com- 
plainant from  proceeding  at  law  against  them  both  upon  the  original 
cause  of  action  for  which  the  note  was  given,  and  gave  him  a  riglit  to 
proceed  in  equity  under  the  act  of  11th  Feb.  1819,  (1  Rev.  Code  of 
1819,  p.  474)  "directing  the  mode  of  proceeding  in  Courts  of  Equity 
against  absent  debtors,  and  other  absent  defendants."  Williams  v. 
Donaghe's  Ex.  1  Rand.  Rep.  300.  In  Maine  it  has  been  decided, 
that  if  one  oi  two  joirit  promissors  have  neither  property  nor  doraicil  in 
the  state,  a  separate  action  may  be  maintained  against  the  other,  who 
cannot  plead  in  bar,  that  judgment  has  been  recovered  in  another  state 
against  his  partner,  upon  the  original  contract.  Dennet  v.  Chick,  2 
Greenl.  Rep.  121 — a  case  which  much  resembles  Sheehy  v.  Mande- 
ville.  In  Pennsylvania,  by  a  late  act  of  Assembly,  entitled  "  An  act 
for  the  furtherance  of  justice  between  obligors  and  obligees,  and  other 
creditors  and  debtors,"  passed  6th  Apiil,  1830,  (Pamph.  Laws,  277) 
the  following  provisions  are  made,  viz. : 

Sect.  I.  In  all  suits  now  pending,  or  hereafter  brought  in  any  court 
of  record  in  this  commonwealth,  against  joint  and  several  obligors,  co- 
partners, promissors,  or  the  indorsers  of  promissory  notes,  in  which 
the  writ  or  process  has  not  been,  or  may  not  be  served  on  all  the 
defendants,  and  judgments  may  be  obtained  against  those  served  with 
process,  such  writ,  process,  or  judgment  shall  not  be  a  bar  to  recovery 
in  another  suit  against  the  defendant  or  defendants  not  served  with 
process. 

Sect.  II.  From  and  after  the  passing  of  this  act,  in  all  cases  of  ami- 
cable confession  of  judgment  by  one  or  more  of  several  obligors,  co- 
partners, or  promissors,  or  the  endorsers  of  promissory  notes,  such 
judgment  shall  not  be  a  bar  to  recovery  in  such  suit  or  suits  as  may 
have  to  be  brought  against  those  Avho  refuse  to  confess  judgment. 

The  proceedings  in  Neiv  York  against  joint  debtors,  where  all  are 
not  brought  into  court  are  regulated  by  1  R.  L.  520,  S.  13.  See  Leg- 
get^  et  al.  V.  Boyd  et  al.  6  Wend.  Rep.  500.  Mason  v.  Benison,  11 
Wend.  Rep.  612. 


163  LEGAL  REMEDIES 

of  his  being  a  partner  was  unknown  at  the  time 
[  *163  ]  the  *claim  arose.  Therefore,  where  one  partner 

accepted  a  bill  in  the  name  of  his  firm,  but  not 
in  a  partnership  transaction,  it  was  held  that  an  indorsee 
could  not  maintain  an  action  on  such  acceptance  against 
a  dormant  partner,  whose  name  did  not  appear,  and  who 
was  not  known  to  be  a  partner,  nor  the  bill  taken  on  his 
credit.(^) 

An  action  being  instituted  against  partners,  if  those 
who  are  sued  neglect  to  appear,  the  object  of  the  plain- 
tiff must  be,  to  compel  their  appearance,  since,  until  all 
appear,  or  those  who  do  not  appear  are  outlawed,  he 
cannot  proceed  in  his  action.     Where  the  process  is 
bailable,  and  all  are  arrested  under  it,  if  the  defendants 
do  not  appear  according  to  the  exigency  of  the  writ, 
after  bail  to  the  sheriff  has  been  given,  the  plaintiff  may 
either  take  an  assignment  of  the  bail-bond,  and  proceed 
thereon  against  the  defendants  and  their  bail,  or  he  may 
rule  the  sheriff  to  return  the  writ  and  bring  in  the  bodies 
of  the  defendants.     Where,  however,  bail  for  their  ap- 
pearance is  not  given,  but  the  defendants  remain  in  the 
custody  of  the  sheriff,  they  may,  notwithstanding  their 
neglect  to  appear  be  proceeded  against  as  prisoners.(A) 
And  if  the  process,  instead  of  being  bailable,  be  service- 
able only,  the  plaintiff  may,  under  the  statute,(i)  proceed 
to  judgment  against  them  all,  provided  it  be  duly  served 
upon  each  individual  defendant,(^)  and  they  do  not  ap- 
pear in  pursuance  of  its  mandate.     But,  where  some  of 
the  defendants  are  resident  abroad,  and  therefore,  being 
without  the  jurisdiction  of  the  court,  are  not  capable  of 
the  effectual  service  of  its  process,  a  difficulty  arises  in 
enforcing  their  appearance.     If  the  partner  who  is  served 
and  appears  chooses  to  enter  an  appearance  for  his  copart- 
ners, he  may  do  it,  and  his  act  will  be  binding  upon  them ;(/) 
but  he  cannot  be  compelled  to  do  so.     However,  in  the 
event  of  his  refusal  to  enter  a  joint  appearance,  the  plain- 

(g)  Lloyd  V.  Ashby,  2  Car.  &  Pa.  N.  P.  C.  138. 
(h)  See  the  mode  of  proceeding  in  such  cases,  Tidd's  Pract.  (7th 
ed.)  342.  etseq. 

(i)  See  12  Geo.  1.  c.  29.  and  5  Geo.  2.  c.  27.        {k)  Pr.  Reg.  301. 
[l)  Harrison  v.  Jackson,  7  T.  R.  207.     Diet.  Dumpier,  arg. 


AGAINST  PARTNERS.  163 

tiff  is  not  destitute  of  compulsory  means  to  enforce  obedi- 
ence to  his  writ.     He  may  either  proceed  to  outlaw  those 
who  do  not  appear,  or  he  may  distrain(m)  the 
joint  effects  in  this  country,  *and  thereby  endea-  [  *164  ] 
vour  to  compel  an  appearance.     If  joint  property 
can  be  found,  the  latter  is  the  more  speedy  process,  and 
courts  are  more  disposed  to  favour  it  than  the  remedy 
by  outlawry.     In  one  case(n)  where  an  appearance  was 
attempted  to  be  enforced  by  distress,  the  Court  of  Com- 
mon Pleas  decided,  that  if  three  partners  (two  of  whom 
reside  abroad  and  one  in  England)  be  sued  for  a  part- 
nership debt,  and  the  partner  resident  in  England  appear 
to   the   action,  but  refuse  to  appear  for  his  partners 
who  are  abroad,  the  sheriff,  under  a  distringas  against 
the  two  partners,  may  take  partnership  effects,  though 
paid  for  solely  by  the  partner  in  this  country,  to  whom 
the  partnership  was  largely  indebted.     But  if  no  joint 
effects  are  to  be  found,  the  only  mode  of  proceeding  for 
this   purpose   is   by   outlawing   the   defendant   who  is 
abroad,  since  the  partner  here  is  not  bound  to  appear 
for  him,  nor  can  the  separate  property  of  the  one  be 
attached  under  a  writ  of  distringas  issued  with  the  view 
of  enforcing   the  appearance  of  the  other  partner.(o) 
We  have  already  observed,  that  before  a  plaintiff  can 
proceed  solely  against  the  defendant   who   may  have 
appeared,   he   must   carry  the  action  on  through  the 
whole  line  of  process  to  an  outlawry  against  those  upon 
whom,  either  in   consequence  of  their  absconding,  or 
their  residence  abroad,  the  writ  cannot  be  executed. (/?) 
And  courts  of  law  have  shown  an  inclination  to  assist  a 


(m)  Where  a  defendant  is  abroad,  a  plaintiff  may,  notwithstanding 
the  Stat.  51  Geo.  3.  c.  124,  issue  a  distrirtgas  for  the  purpose  of  com- 
pelling his  appearance  thereby.  Nicholson  v.  Bownass,  3  Price,  263. 
S.  P.  Dwerryhouse  v.  Graham,  Id.  266.  n.  Even  where  one  partner 
is  absent  on  business,  and  not  for  the  purpose  of  avoiding  the  action,  a 
plaintiff  may  issue  a  distringas  for  default  of  appearance,  after  the  usual 
service  on  the  other  partner.     Macmurdo  v.  Birch,  5  Price,  520. 

hi)  Morley  v.  Strombom,  3  Bos.  &  Pul.  254. 

\o)  Goldsmith  v.  Levy,  4  Taunt.  299. 

Ip)  See  Tidd's  Pract.  (7th  ed.)  148.  and  the  cases  there  cited.  Dar- 
went  V.  Walton,  2  Atk.  510. 


LEGAL    REMEDIES. 


plaintiff  who  is  reduced  to  the  necessity  of  proceeding  to 
such  an  extremity  against  one  or  more  of  his  joint 
debtors.  Therefore,  where,  on  a  writ  against  three,  one 
was  arrested  and  lay  in  gaol,  and  the  other  two  ab- 
sconded, the  Court  of  King's  Bench  refused  to  discharge 
the  prisoner,  notwithstanding,  according  to  the  practice 
of  the  court,  the  time  for  declaring,  against  him  had  ex- 
pired; observing,  that  he  must  appear  for  all,  or  lie  in 
goal  until  the  other  two  were  outlawed.(«/)  In  such  a  case, 

however,  the  plaintiff  must  move  the  court,  or 
[  *165  ]  apply  to  a  judge,  for  time  *to  declare  against  the 

prisoner,  until  the  outlawry  or  appearance  of 
the  other  defendants  ;(r)  and  must  show  that  he  is 
using  all  due  diligence  in  proceeding  against  them.(s) 

Having  seen  what  responsibilities  partners  incur  to 
third  persons,  either  by  their  own  joint  acts,  or  by  the 
act  of  an  individual  member  of  the  firm,  and  having  also 
pointed  out  the  method  to  be  adopted  to  compel  the  ap- 
pearance of  partners  to  an  action  instituted  against 
them,  we  will  now  inquire,  what  is  the  consequence  of  a 
nonjoinder  of  any  one  or  more  of  the  partners,  when  a 
joint  contract  or  security  is  attempted  to  be  enforced. 
In  this  respect,  the  case  of  partners,  who  have  to  sus- 
tain the  character  of  plaintiffs,  differs  essentially  from 
that,  in  which  they  appear  upon  the  record  as  defen- 
dants. In  the  former  instance  we  have  explained,(^) 
that  although  a  defendant  may  plead  the  nonjoinder  of  a 
copartner  in  abatement,  he  is  not  compelled  to  do  so ; 
he  may  reserve  his  objection,  and  avail  himself  of  it  in 
any  stage  of  the  proceedings.  But  in  the  latter  case, 
partners  must  take  advantage  of  the  objection,  that  all 
the  contracting  parties  are  not  sued,  by  a  plea  in  abate- 
ment, and  it  is  available  in  that  way  only,  though  the 
plaintiff  knew  and  even  contracted  with  the  other  part- 
ners.    Formerly,  and  especially  in  cases  of  contract,  the 

(q)  Per  Cur.  E.  12  Geo.  3.  K.  B.  2  Cromp.  9.  Barnes,  396. 
401.     2  Blacks.  Rep.  759. 

(r)  Per  Cur.  E.  12  Geo.  3  K.  B.  2  Cromp.  9.  Barnes,  396.  401.  2 
Blacks.  Rep.  7.59.  Sykes  v.  Bauwens,  2  New  Rep.  404.  Morton  v. 
Grey,  9  B.  &  C.  544. 

(s)  Tidd's  Pract.  (7th  ed.)  428.  (t)  See  ante,  p.  134. 


AGAINST    PARTNERS.  155 

law  was  otherwise,  and  on  the  mistaken  and  unfounded 
assumption  that  such  matter  could  not  be  pleaded  in 
abatement,(w)  it  was  held,  that  if  it  appeared  at  the  trial 
that  there  was  a  joint  contract,  and  only  one  of  the  con- 
tracting parties  was  sued,  it  was  a  decisive  ob- 
jection against  the  plaintiff's  action,  *the  rule  [*166] 
then  being  unconditionally,  as  it  is  now  restric- 
tively,  that  in  actions  upon  contracts,  every  partner  must 
be  a  defendant.(f)     The  adherence  to  that  rule,  and 
the  mode  in  which  the  objection  was  allowed   to   be 
taken,  namely,  by  giving  it  in  evidence  under  the  plea 
of  non  assumpsit^  occasioned  many  nonsuits,  much  vex- 
ation, and  a  great  hindrance  to  justice.     The  rule  itself 
must  have  been  introduced  originally  from  the  semblance 
of  convenience,  that  there  might  be  one  judgment  against 
all  who  were  liable  to  the  plaintiff's  demand :  but  expe- 
rience has  shown  that  convenience,  as  well^as  justice, 
lies  the  other  way.     A  creditor  knows  with  whom  he 
deals,  but  he  may  not  know  the  secret  partner.     He 
might  therefore,  under  the  practice  as  it  formerly  pre- 
vailed, have  been  subjected  to  many  nonsuits  before  he 
ascertained  who  all  the  partners  were;  or  might  indeed 
have  been  driven  to  the  necessity  of  a  suit  in  equity  for 
a  discovery  of  the  persons  constituting  the  firm.     That 

{u)  That  the  nonjoinder  of  a  joint  contractor  was  the  proper  subject 
of  a  plea  in  abatement,  appears  from  the  year  books.  Mich.  35  Hen. 
6.  38.  If  one  brings  debt  against  another,  and  declares  for  the  price 
of  a  horse,  it  is  a  good  plea  in  abatement  to  say,  that  the  defendant  and 
another  bought  the  said  horse.  S.  C.  cited  Bro.  Tit.  Briefe,  37.  So 
T^r.  9  Edw.  4,  24.  b.  writ  of  debt  against  B,  and  plaintiff  declares  on  a 
contract ;  the  defendant  says  that  the  contract  w^s  made  by  him  and 
one  C,  still  living,  and  not  named  in  the  writ ;  upon  which  the  writ 
abated.  Afterwards  C  dies,  and  a  new  writ  is  brought  against  B.  upon 
the  same  contract,  he  shall  be  received  to  wage  his  law,  although  he 
hath  before  acknowledged  the  contract,  for  he  may  have  since  dis- 
charged it.  And  again  Pasch.  10  Ed.  4,  5.  In  writ  of  account  against 
me  as  receiver,  it  is  a  good  plea  that  I  and  another  were  the  receivers 
who  is  still  living ;  judgment  of  the  writ.  For  thereby  I  sliall  compel, 
the  plainti-flf  to  charge  another  as  well  as  me;  and  besides  he  may 
have  some  matter  of  discharge  of  which  I  have  no  knowledge. — See 
the  judgment  of  Mansfield,  C.  J.,  in  Powell  v.  Layton,  2  New  Rep. 
365. 

(y)  Boson  v.  Sandford,  Skin.  278.  S.  C.  3  Lev.  258.  Carth.  58. 
2  Show.  478.     See  also  Sheppard  ».  Baillie,  6  T.  R.  329. 

29 


166  LEGAL  REMEDIES 

rule,  in  its  application,  was  consequently  attended  with 
the  greatest  hardship,  since  a  bona  fide  creditor  was 
burthened  with  the  expense  of  nonsuits,  in  favour  of  a 
defendant,  who  was  certainly  liable  to  pay  his  whole 
demand,  and  who  could  not  be  injured  by  being  sued 
singly,  because,  whatever  he  paid,  he  must  have  had 
credit  for  in  his  account  with  the  partnership.  The  in- 
justice of  such  a  rule,  and  the  great  inconvenience  of 
such  a  mode  of  htigation,  founded,  not  upon  the  merits 
of  the  case,  but  upon  the  form  of  proceeding,  did  not 
escape  the  acute  penetration  of  Lord  Mansfield.  For 
him  it  was  reserved  to  abolish  the  unjust  and  oppressive 
practice  which  had  obtained  the  sanction  of  his  prede- 
cessors, and  by  the  substitution  of  a  rule  more  consonant 
to  the  principles  of  justice,  and  more  salutary  in  its 
effects,  to  defeat  the  endless  vexation  to  which  creditors 
were  exposed.  For  the  convenience  of  suitors,  he  there- 
fore laid  down,  that  a  defendant  must  take  advantage  of 
the  objection  at  the  beginning  of  the  suit,  by  pleading  it  in 
abatement  ',{iv)  and  this  rule  has  universally  obtained  the 

approbation  of  and  has  been  adopted  by  succeed- 
[*167]  ing  judges.(^-)    *Debts,  therefore,  contracted  by 

partners  in  trade,  are  joint  debts,  for  which  an  ac- 
tion can  only  be  maintained  against  all  the  partners,  or 
the  surviving  partners  jointly,  provided  the  exception,  in 
the  event  of  a  nonjoinder,  is  properly  taken  by  a  plea  in 
abatement.  But  the  objection  is  available  only  by  a  plea 
in  abatement,  and  advantage  cannot  be  taken  of  it  under 
the  general  issue,  the  omission  to  plead  in  abatement 
being  considered  as  an  absolute  waiver  of  the  objec- 
tion.(y)     Nor  is  there  any  injustice  in  this  rule.     An 

{w)  Rice  V.  Shute,  5  Burr.  2611.     S.  C.  2  Blacks.  Rep.  695. 

\x)  Abbott  V.  Smith,  2  Blacks.  Rep.  947.  Buddie  v.  Wilson,  6  T. 
R.  369.  Scott  V.  Godwin,  1  Bos.  &  Pul.  67.  Govett  v.  Radnidge,  3 
East,  62.  Powell  v.  Layton,  2  New  Rep.  372.  Byers  v.  Doby,  1  H. 
Bl.  236  Sutton  v.  Clarke,  6  Taunt.  29.  See  also  1  Wras.  Saund. 
290.  Cases  of  fraud  are  necessarily  excepted  out  of  the  general  rule. 
Therefore,  where  one  partner  fraudulently  makes  a  contract  in  the 
joint  name,  in  an  action  against  himself  singly,  he  cannot  plead  the 
nonjoinder  of  his  copartners  in  abatement.  Hudson  v.  Robinson,  4 
Mau.  &  Selw.  475. 

[y)  Id.  Ibid.     See  also  Wright  v.  Hunter,  1  East,  20. 


AGAINST  PARTNERS.  167 

opportunity  is  afforded  to  the  defendant  of  insisting  that 
the  CO- contractors  shall  be  joined  with  him  in  the  suit, 
but  at  the  same  time,  it  is  so  regulated  as  to  avoid  the 
delay  and  expense  of  a  trial.  The  creditor  is  also  pro- 
tected against  the  consequences  resulting  from  the  former 
practice ;  for  as  a  plea  in  abatement  must  give  the  plain- 
tiff a  be'.ter  v^^rit  or  count,  and  must  be  certain  in  every 
particular,  the  defendant  is  bound  to  plead  the  whole 
truth  of  the  case,  and  disclose  on  the  face  of  his  plea, 
who  are  the  persons  liable.  He  cannot  turn  the  plaintiff' 
round  more  than  once,  by  setting  up  fresh  partners  in 
abatement  of  every  new  action.  If  his  plea  be  untrue  in 
point  of  fact,  as  if  he  plead  a  partnership  between  him- 
self and  another,  and  he  has  two  partners,  the  plaintiff' 
may  take  issue  on  the  plea,  and  if  it  be  found  that  he 
has  two  partners,  the  plaintiff  will  be  entitled  to  judg- 
ment, since  the  plea  which  imports  that  he  has  only  one 
is  disproved.(^)  And  the  plea  to  be  sustainable  must 
answer  the  whole  of  the  writ  or  declaration ;  for  although 
it  professes  to  answer  the  whole,  yet  if,  in  fact,  it  answers 
only  a  part,  there  must  be  judgment  of  respondeat  ouster. 
Therefore,  where,  on  a  writ  in  debt  for  a  certain  sum, 
the  plaintiff  declared  in  the  first  count  for  part  of  it  bor- 
rowed by  the  defendant  of  the  plaintiff,  and  in  a  second 
count  for  the  residue  of  the  sum  for  interest  of  money 
lent  by  the  plaintiff  to  the  defendant,  and  the  defendant 
pleaded  in  abatement  of  the  writ  that  "  the  said  sum  of 
money  in  the  said  writ  mentioned,  and  thereby  supposed 
to  be  borrowed  from  plaintiff,"  was  borrowed  by  defen- 
dant and  others,  and  not  by  defendant  separately ; 
on  demurrer,  because  the  plea  answered  *only  [*168] 
the  cause  of  action  mentioned  in  the  first  count, 
the  court  held  the  plea  bad. (a)  So  a  plea  in  abatement 
for  nonjoinder  will  not  be  upheld,  where,  by  the  evidence 
adduced  in  the  cause,  it  appears  that  the  defendant  has 
treated  the  demand  made  upon  him  as  one  for  which  he 
was  individually   and  not  jointly   responsible.      Thus, 

{z)  Abbot  V.  Smith,  2  Blacks.  947.  Godson  v.  Good,  6  Taunt. 
587.     S.  C.  2  Marsh.  299. 

(a)  Herries  v.  Jameson,  5  T.  R.  553. ;  and  see  Thomas  v.  Hea- 
thorn,  2  B.  «fc  C.  477. 


168  LEGAL  REMEDIES 

where,  in  an  action  of  assumpsit,  the  defendant  pleaded 
that  the  promise  was  made  jointly  by  himself  and  two 
others  who  were  alive,   and  after   the  defendant  had 
proved  that  he  had  two  partners,  the  plaintiff  produced 
several  letters  from  him,  which  were  signed  in  his  own 
name,  and  in  which  he  individually  promised  to  pay  the 
debt  in  question,  without  making  any  mention  of  his 
partners,  Lord  EUeiihorough  held  the  letters  conclusive 
evidence  that  the  debt  was  due  from  the  defendant  indi- 
vidually, and  not  from  the  partnership,  and  would  not 
permit  him  to  show,  that  it  was  due  jointly  from  himself 
and  his  partners. (6)     And  where  an  action  was  brought 
against  one  defendant  who  pleaded  a  similar  plea,  it  was 
held  that  an  account  kept  by  the  defendant  only  in  a 
pass-book  between  him  and  the  plaintiff  at  the  bankers 
of  the  former,  was  strong  evidence  to   show  that  the 
credit  was  given  to  the  defendant  alone.(c)     But  in  sup- 
port of  such  a  plea,  it  is  said  to  have  been  ruled  at  Nisi 
Prius,  and  afterwards  to  have  been  decided  upon  a  mo- 
tion for  a  new  trial,  that  where  the  plaintiff's  particular 
contains   items   which   are  owing  from  the  defendant 
jointly  with  the  partner  who  is  not  sued,  the  defendant 
will  be  entitled  to  a  verdict,  although  the  plaintiff  should 
be  prepared  to  prove  that  some  of  the  items  were  fur- 
nished on  the  credit  of  the  defendant  only.(c?)     Pleas  of 
this  description,  being  considered  as  dilatory,  are  not 
much  favoured  by  the  courts ;  and  in  one  case(e)  where 
a  defendant  pleaded  in  abatement,   that   others   were 
jointly  liable  with  himself,  and  the  plaintiff  applied  to  the 
defendant's  attorney  to  give  the  places  of  abode  and 
additions  of  those  persons,   which  he   refused   to   do 
unless  the  action  were  discontinued,  the  Court  of  King's 
Bench  intimated,  that  if  the  defendant  persevered  in 
such  refusal,  the  plea  should  be  set   aside.     But,   to 
proceed  to  the  discussion  of  the  rule  itself,  it  is   not 
confined  to  actions   on  simple   contracts,   but 
[*169  ]  ^applies  as   forcibly  where  specialties  or  instru- 

{b)  Murray  v.  Somerville,  2  Carapb.  99.  n. 
(c)  Robey  v.  Howard,  2  Stark,  N.  P.  C.  555. 
{d)  Colson  t'.  Selby,  1  Esp.  N.  P.  C.  452.      - 
(e)  Taylor  v.  Harris,  4  B.  &  A.  93. 


AGAINST  PARTNERS.  169 

merits  in  writing,  either  under  or  not  under  seal,  exe- 
cuted or  made  jointly  by  two  or  more  are  put  in  suit. 
The  reason  indeed  is  analogous  in  both  cases.     If  it  do 
not  appear  on  the  face  of  the  declaration,  that  the  instru- 
ment declared  upon  created  a  joint  obligation,  the  record 
is  not  falsified  if;  ut  the  trial,  the  obligation  be  proved  to 
have  been  joint.     In  such  a  case  there  is  no  variance, 
the  contract  proved  and  the  contract   laid   being   the 
same,  and  the  objection  being  merely,  that  the  persons 
making  it  are  different,  which  is  precisely  the  case  con- 
templated by   Lord  Mansfield   when   he  refoiMned   the 
former  practice.(y^)     Therefore,  if  a  bill  of  exchange, 
stated  to  be  accepted  by  three  persons,  be  proved  to 
have  been  accepted  by  the  three  jointly  with  a  fourth  ;(^) 
or  if,  being  alleged  to  have  been  drawn  by  the  defendant 
singly,  it  be  shown  to  have  been  drawn  by  him  and 
another,(A)  there  is  not  in  either  of  these  cases  such  a 
variance  between  the  allegation  and  proof,  as  will  be 
available  to  the  defendant  at  the  trial,  if  he  have  neglect- 
ed to  plead  the  nonjoinder  in  abatement.     So  where  the 
plaintiff  declared  on  a  bond  made  by  the  defendant,  to 
which    non   est  factum    was    pleaded ;    the  jury   found 
specially  that  the  bond  was  a  joint  bond,  made  by  the 
defendant  and  another  to  the  plaintiff,  and  it  was  ad- 
judged that  the  plaintiff  should  recover:  "because  when 
two  men  slyo  jointly  bound  in  one  bond,  although  neither 
of  them  is  bound  by  himself,  yet  neither  of  them  can  say 
that  the  bond  is  not  his  deed ;  for  he  has  sealed  and  de- 
livered it,  and  each  of  them  is  bound  in  the  whole. "(i) 
Proving  that  another  person  contracted,  does  not  nega- 
tive that  the  defendant  himself  contracted.     And  it  is 
now  indisputably  settled,  that  in  all  cases  of  a  joint  obli- 
gation or  deed,  or  a  joint  contract  in  writing  or  by 
parol,  if  one  only  be  sued  he  must  plead  the  matter  in 


(f)  Germaine  v.  Frederick,  cited  1  Williams'  Saunders,  291.  (c). 

(g)  Mountstephen  v.  Brooke,  1  B.  &  A,  224.  See  Rex  v.  Powell, 
1  Ryan  &  :Mood.  101, 

(/t)  Evans  v.  Lewis,  cited  1  Williams'  Saunders,  291.  (d),  Wilson 
V.  Reddall,  Gow  N.  P.  C.  161. 

(i)  Whelpdale's  case,  5  Rep.  119.  See  also  South  v:  Tanner,  2 
Taunt.  256. 


169  LEGAL  REMEDIES 

abatement,  and  cannot  take  advantage  of  it  afterwards 
upon  any  other  plea,  or  in  arrest  of  judgment,  or  give  it 
in  evidence  at  the  trial  as  a  bar  to  the  action.(A:)  Even 
to  contracts  raised  in  invitum  of  the  contractors  the  rule 
/  extends.  Thus  in  an  action  of  debt  on  the 
[  *170  ]  statute  of  *AnneQ)  by  the  toser  to  recover 
money  lost  at  play,  the  defendant  may  plead 
that  all  the  winners  are  not  joined  with  him,  and  his 
plea  will  be  available,  because  the  statute  gives  the 
action  on  the  idea  of  there  being  a  contract  which  the 
act  of  parliament  itself  raises.(m) 

But  although  a  contract  may  be  declared  upon  as 
separate,  and  it  will,  notwithstanding,  be  supported,  if  it 
be  proved  to  have  been  joint,  provided  the  variance  does 
not  appear  on  the  declaration,  or  any  other  pleading  of 
the  plaintiff;  yet  it  will  be  error  if  a  joint  contract  is 
set  forth  in  the  pleadings,  and  it  appears  from  thence 
that  the  co-contractors,  who  are  omitted  as  defendants, 
are  alive.  There  a  difference  appears  upon  the  face  of 
the  record ;  the  plaintiff  himself  shows  that  another 
ought  to  be  joined :  he  has  a  better  writ,  according  to 
his  own  statement,  and  it  would  therefore  be  absurd  to 
call  upon  a  defendant  to  plead  an  admitted  fact  in 
abatement,  the  sole  object  of  which  plea  is  merely  to  in- 
troduce on  the  record  some  new  additional  fact,  which 
gives  to  the  plaintiff  a  better  writ.(n)  In  such  a  case,  a 
defendant,  not  being  permitted  to  plead  the  variance  be- 
tween the  writ  and  the  declaration  (for  a  plea  in  abate- 
ment of  the  writ  could  not  be  sustained),  (o)  may  take 
advantage  of  the  omission  by  demurrer,  or  he  may  move 
in  arrest  of  judgment,  or  sustain  a  writ  of  error.(^)  But 
where  the  instrument,  which  is  the  foundation  of  the 
action,  is  a  joint  bond  or  deed,  it  must,  to  enable  the  de- 
fendant to  take  advantage  of  the  nonjoinder,  otherwise 
than  by  a  plea  in  abatement,  appear  upon  the  record, 
not  only  that  the  co-obligor  or  co-covenantor  is  alive, 

(k)  Cabell  v.  Vaughan,  1  Wms.  Saund.  291.  (b). 
(l)  9  Ann.  c.  14.  (wi)  Bristow  v.  Jamts,  7  T.  R.  257. 

(n)  Scott  V.  Godwin,  1  Bos.  &  Pul.  67.  (o)  Id.  Ibid. 

(p)  1  Chitt.   on   PI.    32.     Anderson   v.    Martindale,   1   East,  497. 
South  V.  Tanner,  2  Taunt,  254. 


AGAINST  PARTNERS.  170 

but  that  he  sealed  or  executed  the  bond  or  deed.(y) 
Those  are  facts  which,  if  the  defendant  plead  in  abate- 
ment, are  absolutely  necessary  to  be  averred  by  him 
in  his  plea ;  and  unless  the  plea  in  abatement  is  render- 
ed unnecessary  by  the  admission  of  the  plaintiff,  in  his 
pleadings,  of  the  facts  which  ought  and  must  be  pleaded, 
the  defendant  cannot  avail  himself  of  the  objection,  ex- 
cept in  the  ordinary  method.  There  are,  indeed,  two  cases 
which  seem  to  militate  against  this  rule,  in  which  it  neither 
appeared  that  the  co-obligors  sealed  the  bonds,  or  were 
alive  at  the  commencement  of  the  suit ;  but  the 
actions  were  *nevertheless,  considered  respec-  [  *171  ] 
tively  abateable,  on  account  of  the  nonjoinder.  In 
the  one(r)  where,  to  an  action  of  debt  on  bond,  the  defen- 
dant pleaded  a  release,  the  plaintiff  prayed  oyer ;  and,  on 
oyer,  it  appeared  that  the  plaintiff  had  released  the  defen- 
dant from  all  bonds,  except  one  for  £40,  wherein  defendant 
and  one  T.  O.  stood  bound;  and  the  plaintiff  replied,  that 
the  excepted  bond,  and  the  bond  declared  upon,  were 
the  same  bond :  the  court,  on  demurrer,  said,  that  the 
plaintiff  himself  having  admitted,  by  his  deed,  that  two 
were  bound,  ought  to  have  brought  his  action  against 
both.  But  this  determination  is  impeached  by  Sir  Wil- 
liam Joties,(s)  who  says  that  there  was  no  resolution 
upon  that  point,  and  that  the  Chief  Justice  was  absent. 
In  the  other  case,(/)  a  scire  facias  was  brought  against 
two  defendants,  stating  that  they,  and  two  other  persons^ 
by  bond  sealed  with  their  seals,  became  jointly  and  seve- 
rally bound  to  the  king  in  a  certain  sum  of  money,  stating 
non-performance,  &;c. ;  and  the  court  were  of  opinion, 
that  as  abateable  matter  appeared  on  the  scire  facias^  it 
was  not  necessary  for  the  defendant  to  plead  in  abate- 
ment, and  they  gave  judgment  that  the  scire  facias  should 
be  quashed.  However,  notwithstanding  these  cases,  the 
better  opinion  seems  now  to  be,  that,  unless  the  facts 
necessary  to  be  pleaded  are  disclosed  and  admitted  by 
the  plaintiff  in  his  pleadings,  the  defendant  is  not  entitled 

{q)  Horner  v.  Moore,  cited  5  Burr.  2611. 
(r)  Hickmott's  Case,  9  Rep.  52.  b. 
(«)  Sir  W.  Jones,  304.     See  8  Mod.  242. 
(0  Rex  t-.  Young,  cited  6  T.  K.  769. 


171  LEGAL  REMEDIES 

to  take  an  objection  to  the  nonjoinder  otherwise  than 
by  a  plea  in  abatement.(M)  In  the  case  of  a  joint  con- 
tract there  is  this  objection  to  the  nonjoinder  of  one  or 
more  of  the  several  parties  liable,  that  if  judgment  be 
obtained  against  one,  in  a  separate  action  against  him 
upon  such  contract,  the  plaintiff  may  experience  diffi- 
culty in  afterwards  proceeding  against  the  parties  omit- 
ted .(z?)  Where  a  plaintiff,  by  reason  of  the  statute  of 
limitations,  or  of  the  9  Geo.  4.  c.  14.  (which  declares 
even  a  written  acknowledgement  of  a  debt  made  by  one 
partner  insufficient  to  revive  it  against  the  others),  is 
barred  of  his  remedy  against  the  firm,  but  is  entitled  to 
recover  against  a  single  partner  by  virtue  of  a  new  ac- 
knowledgment  or   promise  in  writing,  he  may  either 

maintain  an  action  against  that  partner  alone  ; 
[*172]  and  if  the  ^nonjoinder  of  the  others  should  be 

pleaded  in  abatement,  entitle  himself  to  judg- 
ment by  taking  issue  on  the  plea ;  or  he  may  sue  all  the 
partners,  in  which  case  the  court  is  empowered  to  give 
judgment  and  allow  costs  for  the  plaintiff  as  to  such  de- 
fendant against  whom  he  shall  recover,  and  for  the  other 
defendant  or  defendants  against  him.(w) 

Where  one  of  the  joint  contractors  dies,  subsequently 
to  the  making  of  the  contract,  the  survivor  is  alone  re- 
sponsible at  law,  the  personal  representatives  of  the 
deceased  partners  being  discharged  from  hability.(a:) 
And,  if  the  executor  be  sued,  he  may  either  plead  the 
survivorship  in  bar,  or  give  it  in  evidence  under  the 
general  issue.(i/)  In  declaring  against  a  surviving  part- 
ner, it  was  in  an  old  case,(z)  said  by  Lord  Holt,  that 
"  if  there  be  two  partners  in  trade,  and  one  of  them  bay 
goods  for  them  both,  and  the  other  dieth,  the  survivor 
may  be  charged  by  indebitatus  assumpsit  generally,  with- 

{u)  Cabell  v.  Vaughan,  1  Wms.  Saund.  291,  b.  1.  Chitt.  on 
PI.  32. 

(v)  Com.  Dig.  Tit.  Action,  K.  4.  L.  4.  1  Chitt.  on  PI.  32.  See 
also  Godson  v.  Smith,  2  B.  Moore,  157. 

{w)  9  Geo.  4.  c.  14.  s.  1,  2. 

{x)  Godson  V.  Good,  2  Marsh.  302.     S.  C.  6  Taunt.  587.     Bac. 
Abr.  Tit.  Obligations,  D.  4.  Vin.  Abr.  Tit.  Obligation,  P.  20. 
.  (y)  Postan  v.  Stan  way,  5  East,  261. 

(z)  Hyat  V.  Hare,  Comb.  383. 


AGAINST  PARTNERS.  172 

out  taking  notice  of  the  partnership,  or  that  the  other  is 
dead  and  he  survived."     In  practice,  however,  this  rule 
appears  to  have  been  subsequently  departed  from ;  for 
when  one  of  several  joint  contractors  dies,  the  party 
suing  usually  declares  on  a  contract  with  the  deceased 
and  the  survivors,  and  not  with  the  survivors  alone(a) ; 
and  where  a  debt  accrues  from  a  defendant  as  surviving 
partner,  it  is  more  proper,  as  far  as  convenience  is 
concerned,  to   declare  against  him  in  that  character, 
because  the   forms  of  declaration   ought,   as  near  as 
can  be,  to  be  made  subservient  to  the  information  of 
the  party  charged.     But,  although  such  is  the  practice, 
it  is  not  essentially  necessary  to  the  maintenance  of 
the  action  that  the  contract  should,  in  the  declaration, 
be  stated  to  have  been  joint;    for  if  all  the  partners 
had  been  alive,  and  one  only  had  been  sued,  that  cir- 
cumstance could  be  taken  advantage  of  by  a  plea  in 
abatement  alone,  and  would  be  no  defence  upon   the 
general  issue ;  but  inasmuch  as,  where  one  is  dead,  there 
cannot  be  any  plea  in  abatement,  the  rule  of  cessante 
ratione  cessat  lex  applies.     It  has,  therefore,  been  held 
that,  under  a  declaration  containing  only  one   set  of 
counts,  charging  the  defendant  in  his  own  right, 
the  plaintiff  may  recover  *one  demand  due  from  [  *173  ] 
the  defendant  individually,  and  another  due  from 
him  as  surviving  partner.(^)     On  the  death  of  the  last 
surviving  partner,  the  right  of  action  results  against  his 
representatives,  and  not  against  them  jointly  with  those 
of  the  other  deceased  partners.     Therefore,  where  A, 
the  partner  of  B,  signed  an  agreement  on  the  behalf  of 
the  house  of  A  and  B,  and  B  survived  A,  it  was  deter- 


(a)  Spalding  v.  Mure,  6  T.  R.  365.  Per  Le  Blanc,  J.,  Bovill  v. 
AVood,  2  iMau.  &  Selw.  25. 

(6)  Richards  v.  Heather,  1  B.  &■  A.  29.  Calder  v.  Rutherford,  7 
B.  Moore,  158.  Jell  v.  Douglas,  4  B.  &  A.  374.  Fitzgerald  v. 
Boehm,  6  B.  Moore,  332.  Tissard  v.  Warcup,  2  Mod.  contra.  A 
commission  of  bankruptcy  against  a  person,  as  surviving  partner  of 
another,  although  a  statute  execution  against  joint  and  separate  estate 
is  strictly  a  joint  commission;  and  if  the  petitioner  be  a  joint  creditor, 
he  must  claim  against  the  joint  estate.  Ex  parte  Barned,  1  Glyn.  & 
James,  309.     See  the  6  Geo.  4.  c.  T.6.  s.  62. 

30 


173  LEGAL    REMEDIES 

mined  that  an  action  on  the  agreement  could  be  main- 
tained against  the  executors  of  the  survivor  only .(c) 

Similar  in  its  consequences,  in  some  respects,  to  an 
actual  death,  is  the  civil  death  of  one  of  several  joint 
contractors.  A  civil  death  is  the  legal  effect  of  an  out- 
lawry ;  for  an  outlaw,  being  extra  legem  positiis,  is,  in 
legal  contemplation,  dead  as  regards  all  civil  purposes. 
Where,  therefore,  one  of  two  partners  is  outlawed,  the 
fact  of  the  outlawry  affords  the  plaintiff  an  excuse  for  a 
separate  proceeding  against  the  other.  An  original  joint 
liability  is,  indeed,  assumed,  although,  as  one  necessary 
result  of  the  outlawry,  it  cannot  be  jointly  enforced.  The 
plaintiff,  therefore,  in  declaring  against  one  partner  on 
a  joint  contract,  must,  under  such  circumstances,  state 
the  contract  to  have  been  joint,  and  allege  the  outlawry 
of  the  other  as  a  reason  why  the  proceeding  is  separate. 
In  a  declaration  of  this  description,  it  has  been  held  to 
be  insufficient  to  aver,  that  the  outlaw  was  in  due  man- 
ner outlawed,  without  adding  that  he  was  outlawed  m 
that  suit.{d)  And  where,  in  a  joint  action  against  two, 
it  appeared  that  one  of  the  defendants  had  been  outlaw- 
ed upon  different  process  from  that  by  which  the  other 
was  brought  into  court,  and  no  connection  was  shown 
between  the  several  writs  of  capis  against  each,  as  refer- 
able to  the  same  original ;  as  where  one  was  outlawed 
upon  process  by  original,  tested  the  10th  of  April,  re- 
turnable on  the  first  return  of  Easter  term,  and  continued 
regularly  down  to  the  time  of  the  outlawry,  and  the 

other  was  arrested  on  a  special  testatum  capias, 
[  *174  ]  issued  on  the  *24th  of  April  in  Hilary  vacation, 

to  which  bail  was  put  in,  and  the  plaintiff  de- 
clared against  him  alone,  alleging  the  outlawry  of  the 
other  defendant  in  the  same  suit;  the  Court  of  King's 
Bench  set  aside  the  declaration  for  irregularity .(e)  But 
an  allegation  that  a  co-defendant  was,  by  due  course  of 
law,  outlawed  at  the  suit  of  the  plaintiff,  in  this  plea  and 
suit,  is  sufficient  without  a  prout  patet  per  recordum,  be- 

(c)  Calder  v.  Rutherford,  3  Brod.  &  Bingh.  302. 
{d)  Saunderson  v.  Hudson,  3  East,  144.     But  see  Co.  Litt.  128.  b. 
352.  b.  (c)  Haigh  v.  Conway,  15  East,  1. 


AGAINST   PARTNERS,  174 

cause  the  very  record  before  the  court  verifies  that 
averment.(y)  To  a  declaration  against  one,  upon  joint 
promises  by  him  and  another,  whom  the  plaintift'  avers  to 
be  outlawed,  the  defendent  may  plead  mil  tiel  record  of 
outlawry;  but  such  a  plea  must  conclude  in  abatement, 
and  not  in  bar.(^)  On  the  subject  of  the  outlawry  of  one 
co-contractor  it  may  here  be  remarked,  that  it  has  not 
the  effect  of  altering  the  nature  of  the  contract  in  any 
other  respect,  than  as  it  empowers  the  plaintiff  to  en- 
force it  against  the  other  contractor.  The  contract 
being  still  joint,  if  the  latter  die,  the  remedy  survives 
against  the  outlaw,  and  cannot  be  enforced  against  the 
personal  representative  of  the  deceased.  Thus,  where 
the  plaintiff  brought  an  action  against  two  defendants, 
and,  having  proceeded  to  outlawry  against  one,  prose- 
cuted the  action  against  the  other,  who  died  after  inter- 
locutory and  before  final  judgment,  the  Court  of  King's 
Bench  held,  that  he  could  not  have  a  scire  facias  against 
his  administrator;  for,  notwithstanding  the  outlawry, 
the  action  remained  joint,  and  therefore  survived  against 
the  other  defendant.(^)  And  it  has  been  determined 
that  a  judgment  of  outlawry  against  two  of  three  joint 
debtors,  does  not  make  the  debt  a  separate  one,  so  as 
to  enable  the  creditor  to  prove  it  under  ^  separate  com- 
mission againt  the  third  debtor.(i)  In  an  action  against 
three  on  a  promissory  note,  two  of  whom  are  stated  to 
be  outlawed,  the  third  may  take  advantage  of  the  mis- 
nomer of  his  companions,  upon  the  general  issue,  on  the 
ground  of  a  variance  between  the  contract  declared 
upon,  and  that  proved. (yt) 

But,  notwithstanding  the  death  or  outlawry  of  a  joint 
contractor,  where  true  in  fact,  is  sufficient  to  enable  the 
plaintiff  to  proceed  separately,  in  the  one  case  against 
the  survivor,  and  in  the  other  against  the  co- 
contractor,  yet  the  bankruptcy  of  a  *partner  has  [ '  175  ] 
not  the  same  effect,  if  the  objection  to  his  not 

(/)  McMichael  v.  Johnson,  7  East,  50. 
{g)  Nowlan  v.  Geddes,  1  East,  G34. 
[h)  Fort  V,  Oliver,  1  Mau.  &  Sehv.  242. 
(i)  Ex  parte  Dunlop,  Buck,  25.1, 
(/f)  Gordon  v.  Austin,  4  T.  R.  611. 


175  LEGAL    REMEDIES 

being  joined  in  the  action  be  taken  by  a  plea  in  abate- 
ment. This  was  decided  by  the  Court  of  King's  Bench 
in  a  late  case,(/)  in  which  it  was  held,  that  as  joint  con- 
tractors must  be  all  sued,  it  is  no  reason  for  not  joining 
a  person,  with  whom  the  contract  was  made,  that  he 
has  become  a  bankrupt,  and  has  obtained  his  certificate ; 
because  as  the  bankrupt,  if  joined,  might  renounce  the 
protection  which  the  certificate  affords  him,  the  plaintiff 
ought  not  to  be  at  liberty,  in  the  first  instance,  to  antici- 
pate what  may  ultimately  perhaps  prove  to  be  a  dis- 
charge. But  if  the  bankrupt  be  joined,  and  plead  his 
certificate,  the  plaintiff  may  enter  a  nolle  prosequi  as  to 
him,  and  proceed  against  the  others.(m)  And,  subject 
only  to  a  plea  in  abatement,  it  seems,  that  counts  upon 
a  promise  by  the  defendant  and  another,  since  become  a 
bankrupt  and  certificated,  may,  in  an  action  against  the 
solvent  partner  alone,  be  joined  with  counts  on  promises 
made  by  the  defendant  solely,  since  the  other  became  a 
bankrupt.(w) 

Where  one  of  the  partners  or  joint  contractors,  is  a 
minor,  it  does  not  seem  to  be  clearly  established,  whether, 
in  an  action  against  the  partnership  firm,  it  is  necessary 
to  join  him.  In  one  case,(o)  it  was  said  that  he  must  be 
joined ;  but,  consistently  w  ith  more  modern  determina- 
tions, that  dictum  seems  to  be  questionable,  if  it  be  con- 
sidered as  applicable  to  all  cases  in  which  an  infant  is  a 
joint  contractor.  Where  the  action  is  brought  against 
the  adult  members  of  the  firm  solely,  and  they  plead  in 
abatement  that  there  is  another  co-contractor  not  joined, 
the  plaintiflf",  it  appears,  may  reply,  that  the  contractor 
mentioned  in  the  plea  is  an  infant,  and  the  rephcation 

(Z)  Bovill  V.  Wood,  2  Mau.  &  Selw.  22. 

(m)  Noke  v.  Ingham,  1  Wils.  89.  If,  to  enable  a  joint  creditor,  who 
has  proved  under  a  separate  commission,  to  recover  from  the  solvent 
partners,  it  is  necessary  to  join  the  bankrupt  in  the  action,  the  creditor, 
where  he  refuses  to  enter  a  nolle  prosequi,  must  indemnify  the  bankrupt 
ao-ainst  all  the  expenses  of  the  action,  and  cannot  take  advantage  of  the 
judgment  as  against  him.  Ex  parte  Read,  1  Ves.  &  Bea.  346.  S.  C. 
1  Rose,  460.  See  Emmett  v.  Butler,  7  Taunt.  599.  S.  C.  1  B. 
Moore,  332. 

(n)  Hawkins  r.  Ramsbottom,  6  Taunt.  179. 

(o)  Ex  parte  Henderson,  4  Ves.  164. 


AGAINST  PARTNERS.  175 

will  be  a  good  answer  to  the  plea.(^)  Such  a  replica- 
tion excludes  the  idea  of  a  concurrent  liability  having 
ever  existed ;  and,  being  a  negation  of  the  joint  contract 
attempted  to  be  raised,  affirms  the  contract  to 
*be  such  as  it  is  in  legal  effect.  It  would,  in-  [  *176  ] 
deed,  be  an  intolerable  hardship,  and  a  palpable 
injustice  if  a  plaintiff,  who  sued  the  adult  debtor,  should, 
by  a  plea  in  abatement,  be  compelled  to  proceed  against 
the  other,  and  having  done  so  should  be  defeated  (for 
that  the  infant  can  avoid  the  contract  no  doubt  can  be 
entertained)  for  want  of  substantiating  that  joint  con- 
tract and  joint  responsibihty  which  is  requisite  to  main- 
tain his  declaration.  So  a  plaintiff,  who  neglects  to 
reply  the  infancy  of  the  co-contractor,  may  show  that, 
at  the  time  of  the  contract  being  made,  the  alleged  con- 
tractor was  an  infant,  and  that  he  has,  subsequently, 
avoided  the  contract. (9^)  But  if,  instead  of  replying 
infancy,  the  plaintiff  join  issue  on  the  plea  in  abatement, 
and  is  unable  to  establish  an  avoidance  of  the  contract 
by  the  infant,  he  must  be  nonsuited,  because  the  only 
fact  then  in  issue  is  the  existence  or  non-existence  of  a 
joint  contractor,  and  that,  it  seems  to  have  been  con- 
sidered, is  proved  by  showing  an  infant  co-contractor.(r) 
It  has  been  laid  down  by  Lord  Ch.  J.  Gibbs,  that  where 
goods  are  sold  to  a  minor  upon  a  false  and  fraudulent 
representation  by  his  father,  that  he  has  relinquished  his 
business  in  favour  of  the  son,  the  father  is  liable  either 
as  principal  vendee,  or  as  partner  with  his  son.(s)  And 
although  the  law,  considering  it  against  good  policy  that 

{p)  Gibbs  V.  Merrill,  3  Taunt.  313.  Burgess  v.  Merrill,  4  Taunt. 
469.  Anon.  cor.  Le  Blanc,  J.,  in  Banc,  at  Lancaster,  cited  2  Po- 
thier  on  Oblig.  (ed.  Evans)  63.  n.  a.  See  also  2  Vin.  Abr.  p.  68. 
Tit.  Actions,  Joinder,  (D.  d.)  pi.  8. 

{q)  Gibbs  v.  Merrill,  ante.  S.  C.  cited  14  East,  214.  See  also 
Berridge  v.  Merrill,  cited  ibid.  By  the  9  Geo.  4.  c.  14.  s.  5.  it  is  en- 
acted, that  no  action  shall  be  maintained  whereby  to  charge  any  person 
upon  any  promise,  made  after  full  age,  to  pay  any  debt  contracted 
during  infancy,  or  upon  any  ratification  after  full  age  of  any  promise  or 
simple  contract  made  during  infancy,  unless  such  promise  or  ratification 
shall  be  made  by  some  writing  signed  by  the  party  to  be  charged  there- 
with. 

(r)  Gibbs  v.  Merrill,  3  Taunt.  313. 

(s)  Biddle  v.  Levy,  1  Stark.  N.  P.  C.  20. 


176  LEGAL  REMEDIES 

an  infant  should  be  allowed  to  bind  himself  by  contracts 
made  for  goods  for  the  purposes  of  trade,  throws  a  pro- 
tection around  him,  by  holding  that  such  contracts, 
entered  into  during  his  minority,  shall  be  absolutely  void 
and  not  voidable;  and  thence  it  follows  that,  if  he  be- 
comes a  member  of  a  firm,  he  may  avail  himself  of  that 
protection  by  repudiating  all  those  partnership  contracts 
which  may  have  been  concluded  during  his  nonage ;  yet 
the  privilege  necessarily  ceases  with  the  minority,  and 
therefore  if,  on  attaining  full  age,  he  do  not  disaffirm  the 
partnership,  and  notify  that  disaffirmance  to  those  with 
whom  the  firm  previously  had  dealings  he  will  be  liable 
upon  contracts  afterwards  made  in  the  joint  name. 
Thus,  where  an  infant  represented  himself  as  in 
[*177]  *partnership,  and  continued  to  act  in  the  cha- 
racter of  a  partner  till  within  a  short  period  of 
his  coming  of  age,  it  was  determined,  notwithstanding 
there  was  not  any  proof  of  his  doing  any  act  as  a  partner 
after  he  attained  the  age  of  majority,  that  it  was  his 
bounden  duty  to  have  notified  his  disaffirmance  of  the 
partnership  on  arriving  at  that  age ;  and,  as  he  had  ne- 
glected to  do  so,  he  was  responsible  to  persons  who  had 
subsequently  trusted  his  partner  with  goods  on  the  credit 
of  the  partnership.(?)  Within  what  period  a  minor, 
after  attaining  majority,  should  repudiate  the  contract  of 
partnership,  does  not  appear  to  be  settled  by  decision ; 
but  it  seems  to  be  universally  agreed,  that  the  election, 
to  -  abide  by  or  renounce  it,  should  be  made  within  a 
reasonable  time  after  he  comes  of  age.  And,  although 
no  precise  line,  as  to  what  shall  be  reasonable  time,  has 
been  drawn ;  yet,  by  analogy  to  other  cases,  and  from 
what  fell  from  the  court  on  a  late  occasion, (?/)  it  may  be 
inferred,  that  a  week  or  a  fortnight  would  be  considered 
as  reasonable.     We  have  hitherto  assumed,  in  the  case 


{t)  Goode  V.  Harrison,  5  B.  &  A.  147. 

(m)  Doe  d.  Bromfield,  v.  Smith,  2  T.  R.  436.  See  also  Holmes  v. 
Blogg,  1  B.  Moore,  466.  S.  C.  2  B.  Moore,  552.  Under  a  clause  in 
articles  of  partnership,  providing  for  the  admission  into  the'firm  of  a  de- 
ceased partner's  representatives,  .Alexander,  C.  B.,has  considered  three 
months  a  reasonable  time  within  which  the  representatives  should  make 
their  election.     Pigott  v.  Bagley,  1  McClel.  &  You.  569. 


AGAINST    PARTNERS.  177 

of  a  member  of  the  firm,  who  is  a  minor,  that  he  is  not 
made  a  party  to  the  suit ;  but  if  the  action  be  brought 
against  him  jointly  with  the  others,  and  he  pleads  his 
minority  in  bar,  to  which  the  plaintiff  replies,  that  he 
ratified  the  contract  after  he  came  of  age,  it  will  be  in- 
cumbent on  the  plaintiif,  in  order  to  sustain  his  repli- 
cation, to  prove  a  ratification  before  the  commencement 
of  his  action ;  for  the  adoption  by  the  minor,  after  he 
comes  of  age,  is  binding  upon  him  solely  on  the  ground 
of  his  taking  upon  himself  a  new  hability,  upon  a  moral 
consideration  existing  before,  but  it  does  not  admit  the 
perpetual  existence  of  the  contract  so  as  to  revive  it  ab 
initio  against  him.(u)  And  if  a  defendant,  being  a  minor, 
plead  a  similar  plea,  and  the  plaintiflT  is  unable  to 
establish  a  ratification  of  the  contract,  he  cannot  by  en- 
tering a  nolle  prosequi  as  to  him,  continue  the  suit  against 
the  other  defendants ;  because  having,  in  his  declaration, 
stated  the  contract  to  be  a  joint  one  entered  into  by 
several  persons,  by  one  of  whom  it  is  avoided,  it  would, 
were  he  to  obtain  a  verdict  against  the  others,  be  error 
on  the  record,  an  action,  arising  out  of  contract, 
which  is  brought  *against  several,  and  cannot  [*178] 
be  supported  against  all,  failing  wholly,  because 
the  contract  proved  and  established  differs  from  that 
declared  upon  an  assumed :  he  must,  therefore,  discon- 
tinue and  bring  a  new  action  against  the  adult  members, 
as  being  the  sole  contracting  parties,  according  to  the 
legal  effect  of  the  contract.(i^)  (1)     An  infant  partner  is 

(v)  Thornton,  v.  lUingwonh,  2  B.  &  C.  824. 
{w)  Jaffray  v.  Fairbain,  5  Esd.  N.  P.  C.  47.     S.  P.  Chandler  v. 
Parkes,  3  Esp.  N.  P.  C.  76. 


(1)  It  has  been  decided  in  New  York,  in  opposition  to  the  cases  of 
Jaffray  v.  Fairbain,  and  Chandler  v.  Parkes,  that  where  a  plaintiff 
declares  against  several  defendants,  and  one  of  them  pleads  infancy, 
or  gives  it  in  evidence,  under  the  general  issue,  at  the  trial,  the  plaintiff 
may  enter  a  nolle  prosequi  as  to  the  infant  and  proceed  to  judgment 
against  the  other  defendants.  Hartness  et  al.  v.  Thompson  et  al.  5 
Johns.  Rep.  160.  18  Johns.  Rep.  478.  Ex  parte  Nelson,  1  Cowr.  Rep. 
417.  See  also  Walmsley  v.  Lindenberger  ^-  Co.,  and  Cole  v.  Pennell, 
2  Rand.  Rep.  478.  174.  So  also  in  Massachussetts,  Woodward  v. 
Newhalls,  1  Pick.  Rep.  500. 


178  LEGAL  REMEDIES 

not  compelled  to  plead  his  infancy  specially,  but  may 
give  it  in  evidence  under  the  general  issue. (^^)  (1) 

A  plea  in  abatement,  that  there  is  a  dormant  partner 
not  joined  in  the  suit,  who  is  concerned  in  interest  with 
the  defendants,  will  not,  in  all  cases,  be  available ;  be- 
cause, generally  speaking,  the  right  of  the  creditor  to 
proceed  against  such  a  partner  is  elective  and  not  com- 
pulsory, he  being  under  no  obligation   to  consider  the 
dormant  partner  as  his  dehtOT.{y)     Thus  where,  to  an 
action  of  assumpsit,  the  defendant  pleaded  in  abatement 
that  one  who  jointly  promised  was  not  joined,  it  was 
held  that  the  plea  was  not  supported  by  the  evidence  of 
a  secret  partnership,  of  which  the  plaintiff  had  no  know- 
ledge, the  goods  having  been  ordered  by  the  defendant 
alone.(^)     So  where  the  part-owner  of  a  ship  orders 
supplies  in  his  own  name,  he  cannot  plead  the  non-joinder 
of  co-partowners  of  whose  existence  the  creditor  was  not 
apprized.(a)     And  if  the  members  of  whom  the  firm  ap- 
parently consists  are  expressly  named,  as  if  it  be  repre- 
sented to  be  composed  of  A  and  B,  a  creditor,  dealing 
with  them  in  ignorance  of  a  dormant  partner,  cannot  be 
compelled  in  an  action  against  them  to  join  C,  on  account 
of  a  secret  interest  he  may  possess  as  partner.     In  such 
a  case  the  creditor  has  the  option  of  joining  him  or  not, 
as  he  thinks  proper :  he  may  proceed  against  him  when 
he  is  discovered,  notwithstanding  he  was  unknown  to 
be  a  partner  at  the  time  of  furnishing  the  subject  matter 
of  the  debt ;  but  he  is  not  bound  to  do  it,  inasmuch  as 

(a;)  Season  v.  Gilbert,  2  Lev.  144.     Hewlett  v.  Haswell,  4  Carapb. 

118. 

(2/)  Grellier  v.  Neale,  Peake's  N.P.  C.  146.  Robertson  v.  Wilkin- 
son, 3  Price,  538.     Ex  parte  Matthews,  3  Ves.  &  Bea.  126. 

{z)  Stansfeld  v.  Levy,  3  Stark,  N.  P.  C.  8.  In  this  case  it  was  also 
held  that  the  plaintiff  was  not  called  upon  to  go  into  his  evidence  upon 
the  plea ;  but  after  proof  of  the  supply  of  the  goods,  he  might  reserve 
it  in  reply  to  the  defendant's  case. 

(a)  Baldney  v.  Ritchie,  1  Stark.  N.P.  C.  338.  S.  P.  Doa  v.  Chip- 
penden,  Abbott,  L.  S.  part  1.  c.  3.  s.  8. 

(1)  Hartness  et  al.  v.  Thompson  et  al.  5  Johns.  Rep.  160.  See 
Stanshury  v.  Marks,  4  Dall.  130.  Wailing  v.  Toll,  9  Johns.  141. 
Vasse  v.  Smith,  6  Cranch,  231. 


AGAINST  PARTNERS.  178 

the   dormant  partner  was  not  only  not  an  ostensible 
contracting   party,  but  his   interest    was  pur- 
posely *and  professedly  concealed.(6)  (1)     But  [*179] 
where  the  firm  is  described  as  consisting  of  A 
and  company^  which  of  itself  indicates  that  some  other 
or  others  besides  A  are  interested,  and  a  creditor  deals 
with  that  firm,  without  inquiring  who  are  the  actual 
partners,  there,  as  he  might  have  ascertained  the  fact 
had  he  used  due  diligence,  the  partners  who  are  sued 
may  perhaps  insist  on  a  dormant  partner  being  joined 
with  them.(c)  (2)     And  in  a  late  case,  it  was  held,  that 
unless  the  interest  of  the  parties  is  materially  altered  by 
the  plea,  and  the  defendant  subjects  the  plaintiff  to  no 
other  inconvenience  but  that  of  joining  another  person, 
a  dormant  partnership  may  be  pleaded  in  abatement  :(rf) 
and  it  was  also  laid  down,  that  there  is  not  any  injus- 
tice in  admitting  such  a  plea  for  the  purpose  of  a  set- 
off ;(e)  but  hord  .Eldon  has    frequently  expressed    his 
disapprobation  of  this  decision,  and  his  determination 
not  to  adhere  to  it.(/)     And  its  authority  has  been  fur- 
ther impugned  in  a  recent  case,  in  which  it  was  held, 
that  the  non-joinder  of  a  dormant  partner   cannot  be 
pleaded  in  abatement,  but  it  is  for  the  jury  to  say  with 
what  parties  the  contract  was  intended  to  be  made.(^) 
Where  goods  were  consigned  to  two,  for  sale  by  com- 
mission, on  a  dissolution  of  partnership  the  sale  was 

(b)  Ex  parte  Layton,  6  Ves.  438.  Ux  parte  Hamper,  17  Ves.  412. 
Hoare  v.  Dawes,  1  Dougl.  371. 

(c)  Ux  parte  Layton,  supra.     Davies  v.  Hawkins,  3  Man.  &,  Selw. 
433.     See  Robertson  v.  Wilkinson,  3  Price,  538. 

(d)  Dubois  V.  Ludert,  1  Marsh.  248.     S.  C.  5  Taunt.  609. 

(e)  Id.  ibid. 

(/)  Ex  parte  Hodgkinson,  19  Ves.  294.     S.  C.  Coop.  Ca.  101. 
Ex  parte  Norfolk,  19  Ves.  458.     Ex  parte  Watson,  lb.  462. 
{g)  Mullett  V.  Hook,  1  Mood.  &:  Malk.  88. 


(1)  But  See  8  Serg.  &  Rawle,  55. 

(2)  So  if,  by  the  direction  of  the  plaintiff,  the  writ  be  served  on  one 
only  of  two  partners  in  trade,  when  the  declaration  shows,  that  the 
plaintiff  knew  the  names  of  both,  and  he  obtains  a  verdict  upon  the 
plea  of  non  assumpsit,  pleaded  by  the  partner  upon  whom  the  writ 
was  served,  judgment  will  be  arrested.    Shields  v.  Oney,  5  Munf.  550. 

31 


179  LEGAL    REMEDIES 

assumed  by  one,  and  it  was  held,  that  after  the  sale  he 
was  rightly  sued  for  money  had  and  received,  which 
action  could  not  have  been  maintained  against  both, 
although  an  action  for  not  accounting  would  have  lain 
against  both.(A) 

The  rule  of  law,  that  the  action  ought  regularly  to  be 
brought  against  all  the  persons  who  contracted  with  the 
plaintiff,  applies  with  equal  force  to  an  unincorporated 
company ;  and  therefore  to  an  action  against  some  of 
the  members  of  such  a  company,  upon  a  contract  legally 
made  M^ith  the  whole  body,  the  defendants  may  generally 
plead  the  non-joinder  of  the  other  members  in  abate- 

ment.(i)     And,  it  is  apprehended,  that  if  the 
[*180]  *defendants  do  not,  on  the  face  of  their  plea, 

disclose  all  the  persons  hable,  and  the  plaintiff 
is  induced  to  discontinue  and  begin  de  novo,  joining  all 
the  parties  in  conformity  to  the  plea,  as  the  plea  would 
not  help  him  to  prove  them  to  be  alone  jointly  con- 
cerned, it  will  still  be  competent  to  them,  in  abatement 
of  the  second  action,  to  plead,  that  there  are  other  con- 
tractors not  joined,  and  those  other  contractors,  if  they 
are  afterwards  sued,  may  in  like  manner  avail  them- 
selves of  a  similar  plea.  But  a  plaintiff  may  always 
secure  himself  against  a  repetition  of  such  pleas,  if  true 
in  fact ;  for,  as  the  plea  by  the  defendants  to  the  action 
originally  brought,  that  they  jointly  with  certain  others 
contracted,  imported  that  they  jointly  with  those  others, 
and  no  more,  contracted,(/:)  the  plaintiff,  by  controvert- 
ing the  truth  of  that  plea  in  his  replication,  would  entitle 
himself  to  a  verdict ;  because  the  defendants  to  estab- 
lish it,  must  prove  that  the  persons  named,  and  no 
others,  jointly  contracted  with  them.  And  we  have 
already  seen,  that  a  court  of  law  will  assist  a  plaintiff 
whose  claim  is  attempted  to  be  defeated  by  a  plea  of 
this  degcription,  and,  as  the  condition  of  allowing  the 

(/i)   Wells  V.  Ross,  7  Taunt.  403. 

(i)  In  Cousins  v.  Smith,  13  Ves.  542,  Lord  Eldori  seems  to  have 
been  of  opinion,  that  in  an  action  by  the  committee  of  a  voluntary 
society,  the  plaintiffs  would  not  be  liable  to  a  nonsuit  at  law,  and  that 
an  action  against  such  a  committee  could  not  be  defended  on  the  ob- 
jection that  all  the  members  were  not  joined. 

[k)  Godson  V.  Good,  6  Taunt.  587.     S.  C.  2  Marsh.  299. 


AGAINST    PARTNERS.  180 

plea  to  stand,  will  order  that  the  particulars  of  the  places 
of  abode  and  additions  of  those,  whose  non-joinder  forms 
the  subject  of  the  plea,  shall  be  furnished  to  him.(/) 
Joint  stock  companies,  however,  frequently  obtain  from 
parliament  the  privilege  of  being  sued  by  their  secretary ; 
but  whenever  that  privilege  has,  in  modern  times,  been 
conferred,  the  legislature,  with  the  view  of  assisting  the 
plaintiff  with  the  remedy  he  previously  possessed  at 
common  law  against  each  of  the  members  of  the  com- 
pany, has  been  careful  to  provide  that  execution  upon  a 
judgment  against  the  nominal  defendant  may  be 
taken  out  against  any  member  of  tlie  society,  and 
that  the  names  of  the  members  shall   be  enrolled.(?n) 

{I)  Taylor  v.  Harris,  4  B.  &  A.  93. 

(w)  In  the  acts  of  parliament  granted  to  several  of  the  more  recent 
institutions,  the  legislature  has  caused  the  following  provisions  to  be 
inserted,  viz. 

"  That  execution  upon  any  judgment  in  any  action  obtained  against 
the  person  acting  as  chairman  of  the  society  or  partnership  for  the  time 
being,  or  against  the  person  acting  as  secretary  of  the  society  or  part- 
nership for  the  time  being,  whether  as  plaintiff  or  defendant,  may  be 
issued  against  any  member  or  members  for  the  time  being  of  the  society 
or  partnership :  provided  always  that  every  such  chairman  or  secre- 
tary, in  whose  name  any  such  action  or  suit  shall  be  commenced,  pro- 
secuted, or  defended,  and  every  such  member  or  members  against 
whom  execution  upon  any  judgment  obtained  in  any  such  action  shall 
be  issued  as  aforesaid,  shall  always  be  reimbursed  and  paid,  out  of  ihe 
funds  of  the  society  or  partnership,  all  such  costs  and  charges  as  by  the 
event  of  any  such  proceedings  he  or  they  shall  be  put  unto  or  become 
chargeable  with." 

"  That  a  memorial  of  the  names  of  the  several  persons  being  mem- 
bers of  the  society  or  partnership,  in  the  form  expressed  in  the  schedule 
annexed,  shall  be  enrolled  upon  oath  in  the  High  Court  of  Chancery, 
within  three  months  after  the  passing  of  the  act;  and  when  any  trans- 
fer of  any  share  or  shares  of  any  member  of  the  society  or  partnership 
shall  be  made,  a  memorial  thereof  shall  in  like  manner  be  enrolled 
as  aforesaid,  in  the  form  and  to  the  effect  expressed  in  the  said  sche- 
dule." 

"  That  until  such  memorial  as  before  mentioned  shall  have  been 
enrolled  in  the  manner  herein  directed,  no  action  shall  be  brought  by 
the  society  or  partnership  under  the  authority  of  the  act ;  and  all  ilie 
members  whose  names  shall  be  expressed  in  the  last  enrolment,  sbull 
continue  liable  to  all  actions,  suits,  judgments,  and  executions,  until  a 
memorial  or  memorials  of  transfer  shall  have  been  enrolled  as  afore- 
said." 

"  That  nothing  in  the  act  cantained  shall  extend,  or  be  deemed,  con- 
strued, or  taken  to  extend  to  incorporate  the  society  or  partnership,  or 


181  LEGAL    REMEDIES 

[*181]  *But  the  provision  respecting  enrolment  does 
not  exempt  a  member,  whose  name  is  not  en- 
rolled, from  the  liabilities  that  would  otherwise  attach 
to  him ;  for,  if  that  were  so,  non-observance  of  the  act 
would  free  the  party,  neglecting  to  observe  it,  from  re- 
sponsibility ;  that  provision  only  negatives  proceedings 
by  the  company  under  the  authority  of  the  act  until  there 
has  been  an  enrolment.(?2) 

In  actions  ex  quasi  constructu  it  is  not  clearly  estab- 
lished whether  a  plea  in  abatement  for  the  non-joinder 
of  parties  can  be  pleaded.  Formerly  it  was  considered 
that  it  might,  and  the  authorities  on  the  subjuct  were 
uniform  and  unimpeached  until  a  late  case,(o)  in  which 
it  was  held,  that  such  a  plea  was  not  tenable ;  but  the 
propriety  of  this  decision  has  been  questioned,( ;?)  and 
the  majority  of  authorities  are  in  favour  of  such  a  plea.(l) 
The  Court  of  King's  Bench,  in  the  leading  case  on  this 
subject,(^)  were  agreed  that,  at  some  stage  of 
[  *182  ]  the  proceedings,  *the  defendant  may  object  that 
the  suit  is  not  against  all  the  partners,  although 
three  of  the  judges(r)  mistakenly  supposed  that,  in  an 
action  against  one,  the  circumstance  of  the  contract 
declared  upon  being  joint  could  not  be  made  the  ground 
of  a  plea  in  abatement.  It  has,  indeed,  been  objected  to 
the  authority  of  this  case,  that  the  case  itself  has,  by 
subsequent  decisions,  been  shaken  to  its  foundation  in 

to  relieve  or  discharge  the  society  or  partnership,  or  any  of  the  mem- 
bers thereof,  or  subscribers  thereto,  from  any  contract,  duty,  obligation, 
or  responsibility  whatsoever,  which  by  law  they  now  are,  or  at  any 
time  hereafter  may  be  subject  or  liable  to,  either  as  between  such 
society  or  partnership  and  others,  or  among  themselves,  or  in  any 
manner  whatsoever."     See  54  Geo.  3.  c.  79.  s.  2,  3,  4.  and  7. 

(n)  Natusch  v.  Irving,  Appendix,  post. 

(o)  Govett  t>.  Radnidge,  3  East,  62. 

(p)  Powell  V.  Layton,  2  N.  R.  372.     Max  v.  Roberts,  ib.  454. 

(^r)  Boson  V.  Sandford,  2  Show.  478;  reported  also  in  Skin.  278. 
3  Lev.  258.     Garth,  58.     Salk.  440.     3  Mod.  321.     1  Show.  29.  101. 

(r)  According  to  the  report  of  this  case  in  3  Mod.  321.,  Mr.  Justice 
Dolben  was  the  only  judge  who  thought  this  matter  could  be  pleaded  in 
abatement. 


(1)  Walcott  v.  Canfield,  3  Conn.  Rep.  198. 


AGAINST    PARTNERS.  182 

the  main  points  which  it  assumed  to  determine;  for  that 
the  omission  to  join  all  the  partners  or  part-owners  is  a 
matter  pleadable  in  abatement,  and  which,  in  that  mode 
only,  and  not  by  giving  the  matter  in  evidence,  could  be 
taken  advantage  of;  both  which  points  were  however 
otherwise  holden  in  that  case.(5)  But  it  may  be  doubted 
whether  such  an  argument  successfully  impeaches  its 
authority,  when  it  is  remembered  that,  at  the  time  that 
decision  took  place,  a  plea  in  abatement  for  the  non- 
joinder of  joint  contractors  was  not  used  in  actions  of 
assumpsit.  For  that  form  of  action  such  a  plea  was  not 
introduced  imtil  the  time  of  Lord  Mansjield,{t)  although 
formerly,  when  it  was  usual  to  declare  in  debt  on  a  sim- 
ple contract,  such  pleas  have  been  known. (w)  It  seems 
also  to  be  conjectural  what  the  form  of  the  action  in  that 
case  was.  Lord  EUenhorough  considers  it  to  have  been 
an  action  of  assumpsit ',{y)  Lord  Kenyan  has  said  that  it 
was  treated  by  the  whole  court  as  an  action  for  a  breach 
of  contract  •,{w)  while  Mr.  Justice  Chamhre{x)  imagines 
that  it  was  considered  by  all  the  parties  as  an  action  on 
the  case,  and  conceives  it  impossible  for  Lord  Ch.  J. 
Holt  to  have  denominated  it  quasi  ex  contractu,  if,  in  truth, 
it  was  contract.  But  whatever  may  have  been  its  form, 
it  has  been  regarded  and  acted  upon  as  an  authority, 
estabhshing,  that  advantage  may  be  taken  of  the  non- 
joinder of  all  the  parties  in  actions  upon  a  matter  founded 
in  contract,  though  the  form  of  the  action  be  case  for 
malfeasance  or  nonfeasance,  and  the  plea  not  guilty; 
and  later  cases,  not  without  contradiction,  have  decided, 
that  the  mode  in  which  that  advantage  shall  be 
*taken  must  be  by  a  plea  in  abatement. (t/)     In  [  183  ] 

(s)  Per  Lord  Ellenborough,  Govett  v.  Radnidge,  supra. 

[t)  Rice  V.  Shute,  5  Burr.  2611.  S.  C.  2  Blacks.  695.  See  also 
an/e,  p.  166. 

(w)  Powell  V.  Layton,  2  N.  R.  372. 

Iv)  Govett  V.  Radnidge,  supra. 

{iv)   Mitchell  V.  Tarbutt,  5  T.  R.  649. 

{x)  Powell  V.  Layton,  supra. 

(y)  See  Com.  Dig.  tit.  Abatement,  F.  s.  lb.  Action  on  the  case  for 
negligence,  C.  See  also  D'Anvers  Abr.  tit.  Action,  p.  8,  in  which  the 
case  of  Boson  v.  Sandford  is  referred  to  as  law ;  and  in  Dale  v.  Hall,  1 
Wils.  282.,  Mr.  Justice  Denison  approves  of  it. 


183  LEGAL   REMEDIES 

the  case  of  Buddie  v.  Wilson^{z)  although  the  point 
did  not  necessarily  come  in  judgment,  the  court  gave 
a  clear  intimation  of  opinion  that  to  an  action  against  a 
carrier,  in  case  on  the  custom  of  the  realm,  for  not  safely 
carrying  goods,  the  defendant,  where  the  gist  of  the 
action  is  founded  in  contract,  may  plead  in  abatement 
the  non-joinder  of  his  partners.  So,  in  a  still  later 
case,(a)  which  was  an  action  on  the  case  in  the  form  of 
iort^  against  one  of  several  ship-owners  for  not  safely 
conveying  goods  which  had  been  delivered  to  him  by 
the  plaintiff  for  the  purpose,  the  declaration  having 
stated  a  particular  employment  without  alleging  the  ship 
to  be  a  general  ship  carrying  the  goods  of  all  who  chose 
to  send  them,  and  the  defendant  having  pleaded,  in 
abatement,  that  there  were  other  part-owners  not  joined, 
the  Court  of  Common  Pleas,  on  demurrer  to  the  plea, 
decided,  that  the  plea  was  maintainable,  and  gave  judg- 
ment for  the  defendant.  And  in  a  subsequent  case(6) 
the  Court  of  Common  Pleas,  adhering  to  their  former 
determination,  decided,  that  a  plaintiff  who  had  failed  in 
proving  all  the  defendants  to  be  part-owners,  must  fail 
altogether.  A  writ  of  error  was  brought  on  this  latter 
judgment,  which  was  argued  before  the  twelve  judges, 
and  it  was  understood  that  much  difference  of  opinion 
existed  among  them ;  but  the  cause  was  ultimately  dis- 
posed of  on  a  different  ground.(c)  To  these  authorities, 
indeed,  is  to  be  opposed  the  determination  to  which  we 
before  adverted.(^)  That  was  an  action  against  three, 
wherein  the  plaintiff  declared,  that  they  had  the  loading 
of  a  hogshead  of  treacle  of  the  plaintiffs,  for  a  certain 
reward  to  be  paid  to  one  of  them,  and  a  certain  other 

(z)  6  T.  R.  369. 

(a)  Powell  V.  Layton,  supra.  In  this  case  it  was  insisted  in  argu- 
ment, that  if  the  plea  in  abatement  state  the  loss  to  have  arisen  in  con- 
sequence of  the  joint  negligence  of  all  the  co-contractors,  the  plaintiff 
may  reply,  that  it  was  through  the  several  negligence  of  one  ;  but  Lord 
Ch.  J.  Mansfield  thought  otherwise,  and  observed,  that  such  a  replica- 
tion was  never  known. 

(6)  Max  V.  Roberts,  2  N.  R.  454.         (c)  Id.  in  error,  12  East,  89. 

((/)  Govett  V.  Radnidge,  3  East  62.  See  also  Perry  v.  Hunwicks, 
cited  6  T.  R.  371.  Ansell  v.  Waterhouse,  1  Chit,  on  PI,  78.  n.  b. 
S.  C.  2  Chit.  Rep.  1;  and  6  Mau.  &l  Selw.  385. 


AGAINST  PARTNERS.  183 

reward  to  the  other  two,  and  that  the  defendants 
so  negUgently  conducted  *themselves  in  the  [*184] 
loading,  &c.,  that  the  hogshead  was  damaged, 
and  it  was  decided  that  the  gist  of  the  action  was  the 
tort,  and  not  the  contract,  out  of  which  it  arose;  and 
therefore,  that,  on  the  plea  of  not  guilty,  two  being  ac- 
quitted, judgment  might  be  had  against  the  third,  who 
was  found  guilty.  But,  in  another  case  which  came 
under  the  consideration  of  the  Court  of  King's  Bench(e), 
wherein  the  declaration  expressly  alleged  a  bargain,  and 
complained  of  a  deceitful  warranty  in  the  nature  of  a 
wrong,  the  action  being  against  two  persons,  and  the 
plaintiff  proving  a  sale  by  one  alone,  that  court  held 
that  he  could  not  succeed  against  that  one,  but  must 
wholly  fail.(/)(l)  This  last  case,  however,  is  not  to  be 
considered  as  weakening  the  authority  of  Govelt  v.  Rad- 
nidge,  or  as  adopting  that  of  Powell  v.  Layton.  For  the 
case  of  Weal  v.  King  was  matter  of  contract  merely, 
and  was  only  formally  turned  into  a  tort.  The  main 
question,  therefore,  still  remains  undecided.(2) 

But  whatever  may  be  the  existing  difference  of  opinion 
as  to  the  necessity  of  joining  all  the  partners  in  actions 
of  the  description  we  have  just  noticed,  where  the  de- 
fendant who  is  singly  sued  pleads  in  abatement,  yet  in 
actions  arising  ex  delicto,  or  for  torts  unconnected  with 
contract,  such  as  trespass,  trover,  case  for  malfeasance, 
and  the  like,  no  such  difference  of  opinion  exists,  the 
rule  being  clear  and  uniform,  that  in   such  actions  a 

(e)  Weal  v.  King,  12  East,  452. 

(/)  See  also  Green  v.  Greenbank,  2  Marsh.  485. 


(1)  Walcott  V.  Canjield  et  al.  3  Conn.  Rep.  194.  «cc.  In  Alabama, 
the  act  of  Feb.  7th,  1818,  sect.  12,  provides  "  that  where  any  suit  shall 
be  instituted  against  two  or  more  persons  as  partners  in  any  firm,  if 
one  or  more  persons  not  partners  in  said  firm,  shall  have  been  sued  as 
such,  the  Court  before  whom  such  suit  is  or  shall  be  pending,  shall 
discontinue  said  suit  against  such  person  or  persons  as  shall  appear  not 
to  be  partners  in  said  firm,  and  proceed  to  judgment  and  execution 
against  all  or  any  of  the  defendants  in  such  action  who  shall  appear  to 
be  partners.   Toulinin''s  Dig.  449. 

(2)  See,  however,  Bank  of  Orange  v.  Brown  et  al.  3  Wend.  Rep. 
158. 


157  LEGAL  REMEDIES 

plaintiff  may,  at  his  option,  consider  the  tort  or  trespass 
as  being  either  joint  or  several,  and  accordingly  sue  all 
or  any  of  the  tortfeasors  or  trespassers.(^)(l)  In  such 
a  case  there  is  a  right  of  action  for  the  whole  damage 
against  any  one  of  the  persons  liable,  a  separate  tort  or 
trespass  attaching  upon  each  of  the  wrong-doers  indi- 
vidually; and  if  sued  alone,  he  cannot  plead  the  non- 
joinder of  the  others  in  abatement  or  in  bar,  or  give  it 
in  evidence  under  the  general  issue ;  for  a  plea  in  abate- 
ment can  only  be  adopted  in  those  cases  where  regularly 
all  the  parties  must  be  joined,  and  not  where  the  plaintiff 
may  join  them  all  or  not  at  his  election.(A)  There- 
fore,(i)  to  an  action  on  the  case  against  the  defen- 
dants, part-owners  of  a  ship,  for  the  negligence 
[*185]  *of  their  servant  in  running  down  a  ship  laden 
with  sugar  belonging  to  the  plaintiff,  whereby 
the  sugar  w^as  lost,  the  defendants,  it  was  decided,  could 
not  plead  in  abatement,  that  there  were  other  part- 
owners  not  joined  in  the  suit,  because  the  action  being 
ex  delicto^  the  trespass  was  several.  And  in  an  action 
on  the  case  against  common  carriers,  charging  them 
with  a  breach  of  duty  imposed  by  the  custom  of  the 
realm,  or,  in  other  words,  by  the  common  law,  and 
which,  therefore,  being  a  breach  of  the  law,  does  not 
require  the  aid  of  a  contract  to  support  it,  a  verdict 
may  be  found  for  some  and  against  the  rest  of  the  de- 
fendants, and  if  judgment  be  entered  accordingly  it  is 
not  erroneous.(j)  Nor  in  such  an  action  is  it  material 
whether  the  tort  were  committed  by  the  partners  per- 

{g)  Rice  «.  Shute,  5  Burr.  2611.  Bristow  ».  James,  7  T.  R.  257. 
Attorney-General  v.  Burges,  Bunb.  223.  Co.  Lit.  232.  a.  Morrow  v. 
Belcher,  4  B.  <fe  C.  704. 

(A)  Child  V.  Sands,  Carth.  294.  Cabell  v.  Vaughan,  1  Wras. 
Saund.  291.  c  Leshe  v.  Wilson.  6  B.  Moore,  426. 

(i)  Mitchell  V.  Tarbutt.  5  T.  R.  649. 

(j)  Bretherlon  v.  Wood,  6  B.  Moore,  141.  In  an  action  of  tort 
against  several,  there  cannot  be  a  nonsuit  as  to  one,  and  a  verdict  against 
the  others.     Revett  v.  Browne,  2  Moore  &  Payne,  18. 


(I)  Per  Kent,  C.  J.,  Livingston  v.  Bishop,  1  Johns.  Rep.  290. 
Rose  V.  Oliver  et  al.  2  Johns.  Rep.  365. 


AGAINST   PARTNERS.  185 

sonally  or  by  their  servant  in  the  prosecution  of  their 
business ;  since,  in  the  latter  case,  the  rule  of  law,  qui 
facit  per  alium  facit  per  se,  applies,  and  renders  them,  or 
each  of  them,  responsible  for  the  consequences.  And 
this  is  not  a  mere  formal  distinction:  it  applies  sub- 
stantially as  regards  the  person  who  is  the  object  of  the 
suit ;  for  if  damages  be  recovered  against  him,  and  he 
be  enforced  to  pay  them,  he  cannot  afterwards  compel 
his  copartners  to  contribute  their  proportion  of  his  dis- 
bursement, since,  in  actions  founded  in  tort,  each  wrong- 
doer being  separately  responsible,  a  contribution  cannot, 
by  law  be  claimed  as  between  them.(i?:)(l)  It  has  been 
said,  that  if  the  plaintiff  himself,  on  the  face  of  his  de- 
claration, state  that  others  beside  the  party  who  is  sued 
committed  the  trespass,  his  action  abates ;(/)  but  there 
does  not  seem  any  good  ground  for  this  distinction.(m) 
Independently  of  a  plea  in  abatement,  of  which,  when 
not  jointly  sued,  we  have  seen  partners  may  avail  them- 
selves, every  other  defence  which  may  be  urged  by  an 
individual  in  answer  to  an  action  commenced  against 
him,  is  open  to  persons  who  are  called  upon  jointly  to 
perform  a  contract.  If  any  thing  operating  as  a  bar  to 
the  action  exists,  it  is  equally  conclusive  when  propound- 
ed by  many  defendants,  as  it  is  when  pleaded 
by  one  *who  is  singly  sued.  Partners,  there-  [*186] 
fore,  like  individuals,  may  plead  whatever  bars 
the  plaintiff's  action  or  reduces  his  demand.  For  in- 
stance, a  release  to  one  partner  may  be  pleaded  in  bar 
of  an  kction  against  the  others ;  for  there  being  but  one 
duty  extending  to  all,  a  release  to  one  inures  to  the 
benefit  and  is  a  discharge  of  all  the  partners.    And  it  is 

{k)  Merry  weather  v.  Nixan,  8  T.  R.  186.  Lingard  v.  Bromley,  1 
Ves.  &  Bea.  117.  But  see  Woolley  v.  Batte,  2  C.  &  P.  N.  P.  C. 
417.(2)  and  ante,  p.  87. 

(/)  Brickhead  v.  York,  Hob.  199. 

(w)  Cabell  v.  Vaughan,  1  Wras.  Saund.  291.  c. 


(1)  Peck  V.  Ellis,  2  Johns.  Cha.  Rep.  131.  2  Johns.  Rep.  269. 

(2)  The  marginal  abstract  of  the  case  contains  a  statement  not  war- 
ranted by  the  report. 

32 


186  LEGAL  REMEDIES 

immaterial  whether  the  release  be  by  deed  or  by  opera- 
tion of  law  ;(n)(l)  for  a  personal  action  once  suspended 
by  the  voluntary  act  of  the  party  entitled  to  it,  is  for 
ever  gone  and  discharged.     By  the  civil  law,  a  release 
to  one  joint  debtor  was  considered  as  operating  the  dis- 
charge of  the  others ;  si  ex  pluribus  obligatis  imi  accepto 
feratur^  non  ipse  solus  liberaiur,  sed  et  hi  qui  secum  obli- 
gmitur  ;  nam  cum  ex  duohus  pluribusque  ejusdem  obliga- 
iionis  participibus  uni  accepto  fertur^  cceteri  quoqiie  liberan- 
tur ;  71071  quonia7n  ipsis  accepto  latinn  est,  sed  quoniam 
velut  solvisse  videtur  is,  qui  acceptilatioTie  solutus  est.(6) 
In  conformity  with  this,  and  according  to  the  law  of 
England,  if  two  or  more  are  jointly  and  severally  bound 
in  a  bond  or  personal  obligation,  a  release  to  one  dis- 
charges the  other  or  others ;  for,  in  such  a  case,  the 
joint  remedy  being  extinguished,  the  several  remedy  is 
likewise  destroyed.(/9)(2)     The  same  rule  holds  in  the 
case  of  all  joint  and  several  contracts,  a  release  to  one 
of  many  joint  and  several  debtors  of  his  or  any  part  of 
his  liability  being  equally  available  to  the  others  as  it  is 
to  the  party  actually  released.  In  a  very  old  case,(9)  it  is 
laid  down,  that  if  two  receive  a  sum  of  money  jointly,  and 
each  of  them  binds  himself  to  account  for  the  whole,  and 
afterwards  a  writ  of  account  is  brought  against  them  by 
divers  prcecipes,  and  they  are  counted  against  severally 
as  receivers  of  the  said  sum,  a  release  made  to  one  of 
them  of  all  debts  and  accounts  shall  be  a  release  to  the 
other  also.     So,  if  several  persons  commit  a  joint  tres- 
pass, a  release  to  one  is  a  discharge  to  the  all  the 
others.(r)     And  even  if  the  release  be  to  one,  with  a 

(n)  Cheetham  v.  Ward,  1  Bos.  &  Pul.  630. 

(o)  Inst,  lib.  16.  fF.  de.  tit. 

(p)  Co.  Litt.  232.  a.  Bac.  Abr.  tit.  Release,  G. 

{q)  2  Ed.  3.  40  b.  Vin.  Abr.  tit.  Release,  G.  a.  pi.  7.  2.  Rol.  Abr. 
412. 

(r)  Co.  Litt.  232.  a.  Hob.  66.  2  Roll.  Abr.  412.  Vin.  Abr.  tit. 
Release,  G.  a.  pi.  1. 


\ 


(1)  Robertson  v.  Smith  et  at.  18  Johns.  Rep.  459. 

(2)  Witlings  et  al.  v.  Consequa,  1  Peters'  Rep.  301.    Rowley  v. 
Stoddart,  8  Johns.  Rep.  207. 


AGAINST  PARTNERS.  186 

proviso  that  the  other  shall  not  take  advantage  of  it,  it 
has  been  said  that  the  proviso  would  be  void  and 
the  release  would  discharge  *both.(5)  This  rule  [*187  ] 
prevails  in  equity,(^)  as  well  as  at  law ;  but  it 
does  not  apply  in  every  case  of  a  personal  discharge, 
since  the  legal  effect  of  a  release  may  be  countervailed 
by  express  declaration,  and  when  the  release  is  special 
and  personal  in  its  nature  it  must  be  construed  accord- 

(s)  Lit.  Rep.  190.         The  following  note  by  Lord  Nottingham  on 
this  .«!ubject  is  inserted  in  Mr.  Margrave's  edi'tion  of  Co.  Lit.  232.  a. — 
26.  H.  6.  T.  Barre,  37  : — Obligee  made  an  acquittance  to  one  obligor, 
which  was  dated  before  the  obligation,  but  was  delivered  afterwards  ; 
the  other  obligor  pleads  this  in  bar,  and  it  was  adjudged  a  good  plea  in 
bar.     Nota,  each  was  bound  in  the  entirety,  therefore  it  was  joint  and 
several.  34.  H.  6.     So  in  the  case  of  the  king ;  if  he  releases  to  one  of 
the  obligors,  the  other  shall  take  advantage  of  it.    5  Rep.  56.  contra. — 
And  as  a  release  in  deed  to  one  obligor  discharges  the  other,  so  of  a  re- 
lease in  law,  as  8  Rep.  136.  Needhavi's  case.     A  woman  obligee  mar- 
ries the  obligor,  that  is  another  sort  of  discharge,  264.  b.     But  17  Car. 
B.  R.  two  were  bound  jointly  and  severally.     The  plaintifl' sued  both, 
and  afterwards  entered  a  retraxit  against  one ;  whether  that  discharged 
the  other  was  the  question.     Berkeley  said  it  was,  for  it  amounts  to  a 
release  in  law,  as  the  plaintiff  confesses  thereby  that  he  had  not  cause 
of  action,  and  therefore  he  cannot  have  judgment,  as  in  HickmoCs  case, 
9  Rep.  and  retraxit  is  a  bar  to  an  action ;  and  the  plaintiff  by  his  own 
act  has  altered  the  deed  from  joint  to  several,  and  therefore  the  other 
shall  have  advantage  of  it.     Coke  .Just.,  contra ;  for  retraxit  is  only  in 
the  nature  of  an  estoppel ;  and  therefore  the  other  shall  not  have  ad- 
vantage ;  neither  is  it  a  release,  though  it  be  in  the  nature  of  a  release  ; 
and  if  the  obligee  sues  both,  and  then  covenants  with  one  not  to  sue 
farther,  that  is  in  the  nature  of  a  release,  but  the  other  shall  not  take  ad- 
vantage of  it;  and  in  21  H.  6.  it  is  said,  that  there  must  be  an  actual 
release  to  one  obligor  to  discharge  the  other.  See  March.  Rep.  165. — 
Pas.  18.  Car.  Hannan  v.  Roll.      The  obligee  releases  to  one  obligor; 
the  other,  in  consideration  of  the  forbearance,  undertakes  to  pay,  and  in 
an  action  upon  the   case   the  matter  was   found  specially ;  and  Rolls 
argued,  that  the  matter  was  not  absolutely  discharged,  but  only  sub 
modo,  viz.  if  the  other  can  have  the  release  to  plead,  and  because  the 
forbearance  was  a  good  consideration.     But  the  court  was  of  opinion, 
that  the  debt  was  absolutely  discharged,  and  therefore  the  consideratton 
was  insufficient. — See  Hob.  Rep.  70.     Parker  v.  Sir  John  Laivrence. 
In  trespass  against  three,    they  divided  on  the  pleading.    Judgment 
against  one.     Then  he  entered  a  noli  prosequi  against  the  two  others  ; 
it  was  held  to  be  no  discharge  to  him   against  whom  judgment  was 
had ;  for  as  to  him,    the   action  was   determined   by   the  judgment, 
and  the  others  are  divided  from  him,  and  not  subject  to  the  damages 
recovered  against  him  ;  but  a  noli  prosequi,  or  nonsuit  before  judgment 
against  one  would  discharge  all. 

{t)  Bower  v  Swadlin,  1  Atk.  294.  See  Ex  parte  Slater,  6  Ves.  146. 


187  LEGAL  REMEDIES 

ing  to  the  particular  purpose  and  intent  for  which  it  was 
made.  For  instance,  where  one  of  two  partners  obtained 
from  a  creditor  a  general  release  by  deed,  in  which  it 
was  expressly  provided  that  its  operation  should  not  ex- 
tend to  prejudice  any  demands  which  the  creditor  had 
either  separately  or  jointly  against  the  other  partner, 
nor  should  it  affect  his  claims  against  the  joint  effects ; 

and  there  was  a  further  stipulation,  that  the  cre- 
[  *188  ]  ditor  might  commence  an  action  at  law  *against 

the  partners  jointly,  for  the  purpose  of  en- 
abling him  to  recover  payment  from  the  joint  estate 
or  from  the  separate  estate  of  the  other  partner;  a 
joint  action  having  been  commenced,  the  party  re- 
leased pleaded  the  release,  to  which  the  plaintiff  re- 
plied, that  he  sued  him  only  in  order  to  recover  against 
the  other;  and,  on  demurrer,  the  replication  was  held 
good.(?/)(l)  A  similar  operation  and  effect  is  ascrib- 
able  to  a  covenant  not  to  sue  one  of  several  partners 
or  joint  debtors.  Such  a  covenant  does  not  extin- 
guish the  covenantor's  right  of  action  against  the  other 
debtors,(2)  although,  if  there  had  been  a  single  debtor 
only,  the  covenant  would  have  been  tantamount  to 
and  would  have  operated  as  a  release. (v)(3)  Thus 
if  a  creditor  covenant  never  to  sue  a  debtor,  this  cove- 
nant may  be  pleaded  by  the  debtor  by  way  of  release 
and  in  bar  of  the  action,  because  the  sum  which  the 
debtor  may  be  compelled  to  pay  would  be  the  exact 

(w)  Solly  V.  Forbes,  4  B.  Moore,  448.  S.  C.  2  Brod.  &  Bing.  38. 
In  what  cases  the  general  words  of  a  release  are  restrained  by  a  parti- 
cular recital  or  purpose,  see  Morris  v.  Wilford,  2  Show.  47.  2  Roll. 
Abr.  409.  Payler  v.  Homersham,  4  Mau.  Si  Selw.  423.  Twopenny 
V.  Young.  3  B.  &  C.  208.  (4) 

{v)  Per  Gibbs,  Ch.  J.  Hutton  v.  Eyre,  1  Marsh.  608.  And  see 
diet,  of  Holroyd,  J.  in  Thomas  v.  Courtney,  1  B.  &;  A.  8. 

(1)  See  Clement  v.  Brush,  3  Johns.  Ca.  ISO.  Stewart  v.  Eden,  2 
Caines'  Rep.  121. 

(2)  Per  Thompson,  J.,  delivering  the  opinion  of  the  Court  in  Eow- 
ley  V.  Stoddart,  7  Johns,  Rep.  210. 

(3)  Cuyler  v.   Cuyler,  2  Johns.  Rep.  186.     See  also  Phelps  v. 
,  Johnson,  8  Johns.  Rep.  43. 

(4)  Tfllkes  et  al.  v.  Ferris,  5  Johns.  Rep.  335,  Munro  v.  Allaire,  2 
Caines'  Ca.  327. 


AGAINST  STRANGERS.  188 

measure  of  damages  for  an  infraction  of  the  covenant, 
and  consequently  to  admit  a  right  of  action  would  be  a 
mere  circuity  ,(w)  but  if  two  be  bound  jointly  and  seve- 
rally, and  the  creditor  covenant  with  one  of  them  not  to 
sue  him,  it  has  been  held  that  it  shall  not  operate  a  re- 
lease, but  shall  be  a  covenant  only ;  for  a  covenant  is 
not   a   release  in   its   nature;  but   only   by  construc- 
tion, to  avoid  circuity  of  action ;  and  where  a  creditor 
covenants  not  to  sue  one  only  of  his  debtors,  he  has 
still   a  remedy  against  the  other,   and   therefore  the 
objection  of  circuity  cannot  apply.(^)     In  a  late  case,(y) 
where    a   creditor    joined   in   a   deed   of  composition 
with  the  other  creditors   of  one   of  two  obhgors  by 
a  joint  and  several  bond,  the  Court  of  King's  Bench 
held  that  the  other  obligor  could  not  avail  himself  of  this 
as  a  release.  The  case  o^Lacy  v.  Kynaston  being 
*cited  Lord  Kenyan  said,  that,  to  be  sure,  it  re-  [  *189  ] 
moved  all  difficulty  on  the  subject,  and  was  a 
direct  authority  in  favour  of  the  plaintiff;  he  had  only 
been  doubting  in  his  own  mind  on  the  strict  law  of  the 
case,  for  that  the  honesty  and  justice  of  it  were  with  the 
plaintiff  could  not  be  doubted;  and  even  if  the  defendant 
had  succeeded  at  law,  a  court  of  equity  would  have  given 
the  plaintiff  full  relief.     Indeed,  where  several  are  liable, 
and  the  creditor  covenants  with  one  of  them  only  not  to 
sue  him,  it  seems  difficult  to  imagine  how  it  could  have 
been  presumed,  that  the  intention  of  the  person  cove- 
nanting was  to  produce  a  collateral  effect  with  respect 
to  the  others,  when  a  distinct  and  reasonable  effect  might 
be  produced,  by  giving  the  party,  claiming  the  benefit 
of  the  covenant,  redress  for  any  injury  which  he  might 
personally  sustain  from  the  infraction  of  it.     The  credi- 

{w)  Smith  V.  Mapleback,  1  T.  R.  446.  Cro.  Eliz.  623.  In  those 
cases  where  a  covenant  not  to  sue  shall  be  construed  to  inure  as  a  re- 
lease to  avoid  circuity  of  action,  the  covenant  not  to  sue  must  be  a  per- 
petual covenant,  that  is,  a  covenant  not  to  sue  at  all ;  for  a  mere  cove- 
nant not  to  sue  within  a  particular  time  will  not  have  this  effect.  Deux 
V.  JefTeries,  Cro.  Eliz.  352.  S.  C.  1  Rol.  Abr.  939.  Ayliffv.  Scrom- 
shire,  1  Show.  46.     S.  C.  Salk.  573. 

[x)  Fitzgerald  v.  Trant.  11  Mod.  254.  Lacy  v.  Kynaston,  1  Ld. 
Raym.  690.    S.  C.  12  Mod.  551.  2  Salk.  575.  Holt's  Rep.  178. 

(y)  Dean  v.  Newhall,  3  T.  R.  108. 


189  LEGAL  REMEDIES 

tor  in  these  cases  must,  for  the  sake  of  conformity,  join 
all  the  partners  or  debtors  in  an  action  to  recover  his 
debt,  since  if  all  are  not  sued,  it  will  be  good  ground  for 
a  plea  in  abatement;  and  the  covenantee  cannot  plead 
the  covenant  not  to  sue  himself  in  bar;  but  if  the  judg- 
ment be  enforced  against  him,  or  he  sustain  any  other 
damage,  he  must  have  recourse  to  his  remedy  against 
the  creditor  on  his  covenant.(2')  Partners  may  also 
plead  a  tender  of  the  sum  due  in  bar  of  the  action 
brought  against  them :  but  if  to  such  a  plea  the  plaintiff 
reply  that  he  subsequently  demanded  the  sum  tendered, 
and  that  the  defendants  refused  payment  of  it,  the  repli- 
cation will  be  supported  by  evidence  of  a  demand  from 
one  of  the  partners  and  a  refusal  by  him  to  pay,  because 
a  refusal  by  one  is  equivalent  to  a  refusal  by  both.(a) 
We  have  stated  that  partners  may  likewise  avail  them- 
selves of  any  thing  which  goes  in  reduction  of  the  de- 
mand made  against  them.  This  right,  however,  is  not 
unlimited  and  undefined,  but  is  regulated  by  those  prin- 
ciples which  govern  the  law  of  set-off  in  ordinary  cases. 
Therefore,  a  separate  debt  due  to  an  individual  partner 
cannot  be  set  against  a  joint  demand  upon  the  firm,(6)(l) 
unless  there  be  an  express  agreement  between  the  par- 
ties renouncing  the  general  law,  and  stipulating  that  in 

such  case  a  set-off  shall  be  allowed.(c)(2)     But 
[  *190  J  a  debt  on  a  joint  and  several  bond  may  be  set  *oj3* 

by  the  obligee  in  an  action  brought  against  him 

(z)  Dowse  V.  Jefferies,  And.  307.  pi.  316.  S.  C.  Crow.  Eliz.  352. 
Turner  v.  Davies,  2  Wms.  Sauncl.  150.  n.  2. 

(a)  Pc'Tse  V.  Bowles,  1  Stark.  N.  P.  C.  323.  A  tender  to  one  part- 
ner is  a  good  tender  to  all,  and  ought  to  be  so  pleaded.  Douglas  v. 
Patrick,  3  T.  R.  683. 

(6)  2  Geo.  2.  c.  22.  s.  13.    (c)  Kinnerley  v.  Hossack,  2  Taunt.  170. 


(1)  Ritchie  et  al.  v.  Moore,  5  Munf.  388.  Browti's  Ex.  v.  Thomp- 
son et  al,  Coxes's  Rep.  2.  TVilliams  et  al.  v.  Hamilton,  1  South. 
Rep.  220.  In  Pennsylvania,  two  defendants  sued  jointly,  may  set  off 
a  debt  due  by  the  plaintiff  to  one  of  them.  Bohinson  v.  Beall,  3  Yeates, 
267.  Childcrsfon  v.  Hammon,  9  Serg.  &  Rawle,  68.  Steivart  et  al. 
V.  Coulter,  12  Serg.  &  Rawle,  3.52.  445 

(2)  Lovel  et  al.  v.  Whittridge,  1  McCord's  Rep.  7.  See  1  South. 
Rep.  220. 


AGAINST   PARTNERS.  190 

by  the  obligor  who  executed.(^)  And  where  a  firm  is, 
by  death,  reduced  to  a  single  member,  the  joint  debts 
due  to  the  firm  become  separate  debts  belonging  to  the 
survivor ;  and  therefore,  in  an  action  for  a  debt  due  from 
him  in  his  individual  capacity,  he  may  set  against  it  a 
partnership  debt  due  to  himself  as  sui-viving  partner.(e)(l) 
In  actions  against  partners,  as  in  all  other  cases,  the 
contract  declared  upon  must  be  proved,  and  it  must  be 
shown  to  have  been  a  joint  contract  entered  into  by  all 
those  who  are  sued.  For,  in  such  an  action,  unlike  one 
that  is  founded  on  a  tort,  it  is  not  sufficient  to  establish 
-a  demand  against  a  single  defendant.  There  cannot 
be  a  severance ;  the  contract  as  it  is  alleged  must  be 
established,  both  in  its  terms,  and  as  it  affects  all  the 
defendants,  who  are  charged  and  called  upon  to  fulfil  it. 
If  the  plaintiff"  fail  to  substitute  it  in  part,  by  an  inability 
to  implicate  and  connect  all  the  defendants  with  the  con- 
tract he  has  stated  to  have  been  made  by  them,  he  fails 
in  toto,  and  must  institute  a  new  action  agains  those 
whom  he  can  implicate.(2)  These  observations  naturally 


{d)  Fletcher  v.  Dyche,  2  T.  R.  32.  See  also  Elliot  v.  Davis,  2 
Bos.  &  Pul.  338. 

(e)  Slipper  v.  Stidstone,  5  T  R.  493.  S.  C.  1  Esp.  N.  P.  C.  47. 
See  also  French  v.  Andrade,  6  T.  R.  582. 


(1)  Per  Gibson,  J.,  PFaln,  surv.  part.  v.  Hemes,  5  Serg.  &.Rawle, 
470.     Header  v.  Scott,  4  Verm.  Rep.  26. 

(2)  One  of  Jive  partners  executed  bonds  to  the  United  States,  for 
duties  on  goods  imported  on  account  of  the  partnership,  and  as  their 
property,  and  T.  became  surety  in  the  bonds.  The  co-partner  who 
signed  the  bond  died,  and  afterwards  the  surety  paid  part  of  the  bonds, 
and  after  another  of  the  partners  died  the  surety  paid  the  residue  of  the 
bonds.  T.  brought  his  action  against  one  of  the  surviving  partners, 
who  had  resided  in  the  state  of  Connecticut,  and  had  previously  been  dis- 
charged from  his  debts  by  an  insolvent  act  of  that  state,  for  money  paid, 
laid  out,  and  expended  for  the  use  of  the  co-partners,  (fcc,  in  the  life 
time  of  the  deceased.  In  the  declaration  the  implied  promise  was  laid 
as  made  by  all  the  partners,  in  the  life  time  of  the  deceased  partners. 
It  was  held  that  proof  of  payment  of  money  for  the  surviving  partners, 
after  the  death  of  a  co-partner,  would  not  support  a  declaration  on  an 
implied  promise  by  all  the  partners  ;  that  the  claim  of  the  United 
States  against  the  co-partnership  became  extinguished  by  the  bond  of 
the  individual,  who~^  alone  was  responsible ;  and  that  the  surety  who 


190  LEGAL  REMEDIES 

lead  us  to  inquire,  what  proof  it  is  requisite  that  a 
plaintiff  should  adduce  in  an  action  which  arises,  not  out 
of  a  contract  expressly  made  with  all  the  defendants,  but 
out  of  the  fact  of  their  partnership,  to  establish  that  the 
defendants  are  legally  invested  with  the  characters  as- 
cribed to  them ;  we  will  afterwards  consider  the  effect 
of  an  admission  made  by  one  partner,  as  it  regards  the 
joint  interest  of  all,  whether  made  by  a  partner  who  is, 
or  is  not,  a  party  to  the  particular  suit  in  which  it  is 
offered  as  evidence,  or  whether  made  pending  the  part- 
nership, or  after  its  dissolution ;  and  then  we  will  point 
out  the  instances  in  which  a  partner  cannot,  and  those 
in  which  he  may  be  admitted  a  witness  in  an  action, 
either  for  or  against  his  co-partners.  Where  an  action 
is  brought  against  several  upon  a  contract  on  which  they 
are  liable  as  partners,  the  evidence  usually  given  to  es- 
tabUsh  the  partnership  consists  in  showing  that  they 
have  acted  as  partners  in  the  particular  business.  In  such 
a  case  the  plaintiff  is  not  bound  down  to  the  same  strict- 
ness of  proof  which  is  required  from  partners  when  they 


had  paid  the  money,  had  a  right  of  action  against  the  partner  only  who 
had  signed  the  bond.     Tom  v.  Goodrich  et  al.  2  Johns.  Rep.  214. 

In  a  lat^  case,  B.  &  I.  being  indebted  to  the  United  States  for 
duties,  B.  executed  a  bond  for  the  debt,  in  his  separate  name.  B.  &  I. 
afterwards  made  a  vohintary  assignment  of  tiieir  property  to  the  de- 
fendants for  the  use  of  their  creditors  ;  and  B.  assigned  his  estate  for 
the  use  of  his  separate  creditors.  Before  the  bond  was  given,  B.  &  I. 
authorized,  in  writing,  each  to  execute  Custom  House  bonds  for  duties, 
each  one  of  the  partners  agreeing  to  be  bound  for  the  payment  of  the 
bonds,  as  if  executed  by  both.  An  action  of  indebitatus  assumpsit 
was  instituted  against  the  assignees  of  B.  &  I.  to  recover  from  them  the 
amount  of  the  bond  given  by  B.  to  the  United  States,  out  of  the  partner- 
ship effects  of  B.  &  I.  Held  that  the  bond  was  not  evidence  of  a  debt 
due  by  B.  &  I.  because  not  signed  by  them ;  nor  of  a  debt  due  by 
I.  because  not  signed  by  him ;  and  that  the  bond,  although  given  by- 
one  partner  extinguished  the  debt  for  which  it  was  given,  and  made  it 
the  separate  debt  of  B.  The  United  States  v.  Astley  et  al.  3  Wash. 
C.  C.  Rep.  508.     See  Sale  v.  Dishman's  Ex.  3  Leigh's  Rep.  548. 

It  is  provided  by  the  23d  section  of  the  act  of  Congress  of  20th  April, 
1818,  (Pamph.  Laws,  62)  "that  any  bond  to  the  United  States,  en- 
tered into  for  the  payment  of  duties  by  a  merchant  belonging  to  a  firm, 
in  the  name  of  such  firm,  shall  equally  bind  the  partner  or  partners  in 
trade,  of  the  person  or  persons  by  whom  such  bond  shall  have  been 
executed." 


AGAINST    PARTNERS.  191 

appear  as  plaintifFs.  There  no  reason  exists 
*for  relaxing  the  rules  of  evidence;  for,  by  the  [*191  ] 
very  act  of  suing  jointly,  they  assume  that  they 
have  a  joint  title  to  sue,  and  they  are  necessarily  cog- 
nisant of  all  the  means  by  which  the  fact  is  capable  of 
being  proved:  but  where  partners  are  sued  as  defen- 
dants, the  plaintiff  may  not  be  able  to  ascertain  the  real 
connection  between  them,  it  is  sufficient  for  him  to  show 
that  they  have  acted  as  partners,  and  that,  by  their 
habit  and  course  of  dealing,  conduct,  and  declarations, 
they  have  induced  those  with  whom  they  have  dealt  to 
consider  them  to  be  partners.(/)  Thus,  in  an  action 
upon  an  agreement  for  letting  premises,  signed  in  the 
names  of  a  partnership,  it  has  been  held,  that  proof  of 
the  defendants  being  in  partnership  under  that  firm,  and 
both  acting  in  it,  was  sufficient  to  bind  both,  though  it 
was  not  shown,  from  the  absence  of  the  attesting  wit- 
ness, in  whose  hand-writing  the  agreement  was  sign- 
ed.(^)  And  evidence  that  they  have  acted  as  partners 
is  admissible,  although  the  partnership  may  have  been 
constituted  by  deed.(A)  (1)  So,  a  witness  called  to 
prove  the  fact  of  the  defendants  having  so  acted  may 
properly  be  asked,  whetlier  the  one  defendant  has  inter- 
fered in  the  business  of  the  other,  without  the  question 
being  open  to  the  objection  of  leading.(i)  And  to  prove 
that  the  defendants  are  partners,  it  has  been  held  that  a 
verdict  on  an  issue,  directed  by  a  court  of  equity,  on  a 
bill  filed  by  one  of  them  against  the  other,  for  the  pur- 
pose of  trying,  and  which  established  the  fact  of  a  part- 
nership, is  conclusive  evidence  of  its  existence ;  because, 
although  the  plaintiff  was  no  party  to  the  suit  out  of 

(/)  3  Stark,  on  Evid.  1070.  But  to  charge  a  dormant  partner,  dis- 
tinct evidence  must  be  given  that  he  has  such  an  interest  as  to  raise  a 
liability,  or  that  he  was  engaged  in  the  particular  transaction  which  is 
the  subject  of  the  action.     Gibbons  v.  Wilcox,  2  Stark.  43. 

{g)  Evans  v.  Curtis,  2  C.  &  P.  206. 

(h)  Alderson  v.  Clay,  1  Stark,  N.  P.  C.  406. 

(i)  Nicholls  V.  Dowding,  Ibid.  81. 


(1)  Widdifield  et  al.  v.  Widdijield,  2  Binn.  245.   See  Drake  et  al.  v. 
Elwyn,  et  al.  1  Caines'  Rep.  184,  1st  edition. 

33 


191  LEGAL    REMEDIES 

which  the  issue  arose,  yet  both  the  defendants  having 
been  parties  in  that  suit,  the  record,  as  regarded  them, 
could  not  properly  be  deemed  a  matter  inter  alios  acta, 
since  it  was  competent  to  either,  by  any  evidence,  to 
rebut  the  idea  of  a  partnership.(Q  So  the  fact  of  part- 
nership may  be  proved  by  any  acts  or  declarations  of 
the  defendants  themselves,  which  indicate  or  acknow- 
ledge its  existence.  Therefore,  if  the  defendants, 
[*192]  *when  sued  as  partners,  produce  a  release,  exe- 
cuted by  all  of  them,  in  order  to  render  a  wit- 
ness competent  in  the  cause,  such  instrument  is  to  be 
considered  as  in  evidence  for  all  purposes  whatsoever, 
and  is  alone  sufficient  to  establish  the  fact  of  a  partner- 
ship.(/)  And  the  declaration  or  admission  of  each  indi- 
vidual member  of  a  firm,  that  he  is  a  partner,  is  conclu- 
sive evidence  to  charge  himself  in  that  character.  Thus, 
if  a  person  has  represented  himself  to  be  a  partner,  and 
has  been  trusted  as  such,  he  is  bound  by  that  represen- 
tation, and  it  is  no  defence  for  him  to  show  that  he  was 
not,  in  fact,  a  partner  ;(m)  but  if  a  particular  transac- 
tion only  be  under  discussion,  and  one  person  acknovj^- 
ledge  himself  to  be  the  partner  of  another  in  it,  he  will 
not  be  bound  by  a  contract  unconnected  with  the  parti- 
cular obiect.(?0  So,  where  a  bill  of  exchange,  drawn 
upon  a  firm,  is  accepted  by  an  individual  member  in  the 
joint  name,  the  fact  of  the  acceptance  is  evidence  to 
charge  the  acceptor  as  a  partner.(o)  In  like  manner, 
an  entry  made  according  to  the  statute,  at  the  Excise 
Office,  by  one  partner,  in  the  names  of  himself  and  co- 
partners, as  dealers  in  beer,  is  prima  facie  evidence  of 

(A:)  Whateley  v.  Menheim,  2  Esp.  N.  P.  C.  608.  And  see  Low- 
field  V.  Bencroft,  Bull,  N.  P.  40.  2  New  Rep.  371. 

(1)  Gibbons  i'.  Wilcox,  2  Stark.  N.  P.  C.  43.  Where  a  person,  for 
the  purpose  of  counteracting  a  report  that  he  was  in  partnership  with 
another,  subscribed  a  notice  of  dissolution  with  a  view  to  its  insertion 
in  the  Gazette,  Lord  Eldon  considered  it  as  prima  facie  evidence  of 
the  existence  of  the  partnership,  but  directed  an  issue  to  try  the  fact. 
Ex  parte  Matthews,  3  Ves.  &  Bea.  123. 

(m)  De  Berkom  v.  Smith,  1  Esp.  N.  P.  C.  29.  And  see  Ex  parte 
Matthews,  3  Ves.  &  Bea.  12.5.  Parker  v.  Barker,  1  Brod.  &  Bing.  9. 
S.  C.  3  B.  Moore,  226.     Biddle  v.  Levy,  1  Stark.  N.  P.  C.  20. 

(n)  De  Berkom  v.  Smith,  supi'a. 

[o)  Spencer  v.  Billing,  3  Campb.  312. 


AGAINST  PARTNERS.  192 

partnership  against  the  party  making  it.(/>)     And  in  a 
late  case,  where  it  appeared  that  all  the  defendants,  ex- 
cepting one,  had  been  outlawed,  a  letter  written  by  that 
one,  admitting  his  partnership  with  the  co-defendants, 
was  received  as  evidence  of  the  partnership  ;(1)  for,  as 
Lord  EUenhorough  observed,  the  record  in  that  action 
would  not  be  sufficient  evidence  in  any  future  action 
that  might  be  brought  by  the  then  defendant  against 
the  co-defendants  for  contribution,  to  prove  that  they 
were  parties  to  the  promise,  and  it  would  be  incumbent 
on  him  to  prove  the  fact  by  ulterior  evidence. (9)     And 
the  acts  and  admissions  of  a  party,  made  sub- 
sequently *to  a  contract,  may  be  used  as  evi-  [*193] 
dence  to  show  that  he  was  a  partner  at  the  time 
of  the  contract  ;(2)  but  if  it  be  clear  that  he  was  not 
then  a  partner,  no  subsequent  admission  will  render  him 
liable  in  point  of  law.     Therefore,  one,  who  has  been 
admitted  into  the  firm,  is  not  responsible  for  goods  pre- 
viously sold  and  delivered,  notwithstanding  he  acknow- 
ledge his  liability,  and  accept  a  bill  for  the  amount; 
although,  in  an  action  on  the  bill,  he  M'ould,  of  course, 
be  liable,  by  virtue  of  that  contract.(r)(3)     But  the  act 
or  declaration  of  one  partner  is  not  evidence  to  prove 
the  partnership  against  the  other  members  of  the  firm. 
Thus,  where  a  bill  drawn  upon  a  partnership  firm  is  ac- 
cepted by  one  partner  in  the  joint  name,  the  acceptance 

(;j)  Ellis  V.  Watson,  2  Stark.  N.  P.  C.  453.  478.     In  proceedings 
by  the  crown,  the  entry  would  be  conclusive.     Id.  ibid. 
((/)  Sangster  v.  Mazarredo,  1  Stark.  N.  P.  C.  161.    ' 
(r)  Saville  v.  Robertson,  4  T.  R,  720. 


(1)  But  in  an  action  against  A.  and  B.  as  partners,  on  a  contract 
executed  in  the  partnership  name  by  A.,  A.  suffered  a  default,  and  B. 
pleaded  the  general  issue — held,  that  letters  by  A.  in  the  partnership 
name  to  the  plaintiff's  testator,  could  not  be  read  in  evidence  by  B.  to 
show  that  he  was  not  a  partner  with  A.  The  Court,  however,  per- 
mitted an  account  book  containing  entries  made  by  A.  &  B.  to  go  to 
the  jury  as  evidence  of  a  partnership.  Champlin,  Ex.  of  Champlm  v. 
Tiiley  et  al.  3  Day's  Rep.  H06,  307. 

(2)  So  the  conduct  of  the  parties  at  the  time  of  sale.  Rose  v.  Mur- 
chie,  2  Call's  Rep.  409. 

(3)  See  Fere  v.  Ashhy,  10  Barn.  &  Cresw.  288.  Poindexter  v. 
fVaddy,  6  Munf.  Rep.  418.     Hart  v.  Tomlinson,  2  Verm.  Rep.  101. 


193  LEGAL    REMEDIES 

is  not  evidence  of  the  partnership  except  against  the  ac- 
ceptor.(s)  So,  an  affidavit  for  the  registry  of  a  ship, 
made  by  A,  stating  that  A  and  B  are  the  owners,  is  not 
evidence  of  the  fact  against  B.(^)  And  where  the  ques- 
tion is  whether  A,  who  resides  in  England^  is  partner 
with  B,  who  resides  in  Sptiin^  it  is  no  evidence-  of  the 
fact  to  show  that  B  has  long  traded  at  S.  in  Spain, 
under  the  firm  of  A  and  B,  and  that  A  for  a  long  time 
resided  there,  and  that  there  was  no  other  person  there 
of  that  name.(w)  And  as  the  act  or  admission  of  one 
partner  is  insufficient  to  establish  the  fact  of  partnership 
against  the  others,  it  follow^s  that  any  act  by  third  per- 
sons, which  affects  to  treat  them  as  joint  owners,  is  no 
evidence  of  the  fact  of  joint  ownership,  unless  the  par- 
ticular act  be  show'n  to  have  been  recognised  by  them. 
Thus,  to  charge  two  persons  as  joint  purchasers  of  a 
cart,  an  entry  of  such  cart  in  the  tax-gatherer's  book,  as 
the  property  of  both,  is  not  evidence,  without  showing 
that  the  parties  authorised  or  adopted  the  entry.(2;) 
Upon  the  same  principle,  an  entry  in  books  kept  in  the 
office  for  licensing  stagecoaches,  is  not  any  proof  that 
the  persons  named  in  the  license  are  owners  of  a 
coach.(Mj)     But,  notwithstanding  an  admission  of  the 

partnership,  made  by  one  of  several  partners,  will 
[  *194  ]  not  establish  it  against  the  others,  yet,  if  the  *fact 

that  several  are  partners  be  proved  by  other 
means,(l)  the  act  or  declaration  of  one,  relating  to  the 

is)  Spencer  v.  Billing,  3  Campb.  312.     2  Phill.  on  Evid.  23. 

{t)  Tinkler  v.  Walpole,  14  East,  226.  Mclver  v.  Humble,  16 
East,  169.  Flower  v.  Young,  3  Camb.  240.  Smith  v.  Fuge,  3 
Campb.  456.     Ditchburn  v.  Spracklin,  5  Esp.  N.  P.  C.  31. 

(u)  BurguetJ.  Firmin  De  Tastet,  3  Stark.  N.  P.  C  53. 

iy)  Weaver  v.  Prentice,  1  Esp.  N.  P.  C  369. 

{iv)  Strother  v.  Willan,  4  Campb.  24. 


(1)  As  to  what  is  prima  facie  evidence  of  a  partnership,  see  Tfliitney 
et  al.  V.  Stirling  et  al.  14  Johns.  Rep.  215.  Gowans  v.  Jackson,  20 
Johns.  Rep.  176.  Pix  v.  Otis.  5  Pick.  Rep.  38.  Brytlen  v.  Taylor, 
2  Harr.  &  Johns.  396.  Jlllen  v.  Rostaing,  11  Serg,  &;  Rawle,  362. 
Martin  v.  Kaffroth,  16  Serg.  &  Rawle,  120.  Taylor  et  al.  v.  Hen- 
derson, 17  Serg.  <fe  Rawle,  453.  McPherson  v.  Rathhone,  7-Wend. 
Rep.  216. 


AGAINST    PARTNERS.  194 

subject  matter  of  the  partnership,  will  bind  all:  for 
where  partners  or  others  possess  a  community  of  inte- 
rest in  a  particular  subject,. not  only  the  act  and  agree- 
ment, but  the  declaration  of  one  in  respect  of  that  sub- 
ject matter,  is  evidence  against  the  rest.(x)(l)  There- 
fore in  an  action  of  covenant  against  two,  the  affidavit 
of  one  of  them  may  be  given  in  evidence  as  the  acknow- 
ledgement of  both.(?/)  And  in  an  action  against  two,  as 
drawers  of  a  bill,  it  is  sufficient  to  show  that  two  per- 
sons bearing  the  surnames  of  the  defendants  are  in 
partnership,  and  that  one  of  the  partners  acknowledged 
that  the  bill  was  drawn  by  them,  without  proving  that 
they  bear  the  Christian  names  assigned  to  them  on  the 
record.(z)  So,  an  admission  by  one  partner  of  a  debt, 
and  that  it  has  not  been  paid,  is  evidence  against  all  to 
take  the  case  out  of  the  statute  of  limitations.(a)(2) 

{x)  Per  Le  Blanc,  J.,  Rex  v.  the  Inhabitants  of  Hardwicke,  11 
East,  589.  Nicholls  v.  Dowding,  1  Stark.  N.  P.  C.  81.  Rut  where 
the  same  persons  are  partners,  and  also  part-owners  of  a  vessel,  the  ad- 
mission of  one  as  to  a  subject  of  copartownership,  but  not  of  copartner- 
ship, is  not  binding  upon  the  others.  Jaggers  v.  Binning,  1  Stark.  N. 
P.  C.  64. 

{y)  Vicary's  case,  Bac.  Abr.  tit.  Evidence,  623.  S.  C.  Gilb.  Evid. 
51. 

{z)  Hodenpyl  v.  Vingerhoed,  cor  Mhot,  J.  Chitty  on  Bills,  489. 
The  rule,  it  seems,  is  different  as  to  plaintiffs.  Acerro  v.  Petroni,  1 
Stark.  N.  P.  C.  100 ;  but  see  Jowett  v.  Charnock,  6  Mau  &  Selw.  45. 
Com.  Dig.  Abatement,  E.  18,  19.     Boughton  v.  Frere,  3  Campb.  29. 

(a)  Per  Lord  Kenyan,  Perry  v.  Ja6kson,  4  T.  R.  516.  Thwaites 
V.  Richardson,  Peake's  N.  P.  C.  16. 


(1)  Per  Parker,  C.  J.,  Odiorne  v.  Maxcy  et  al.  15  Mass.  Rep.  44. 
Fisk  V.  Copelnnd,  1  Overt.  Rep.  383.  So  entries  in  the  Books.  Wal- 
den  et  al.  v.  Sherburne  et  al.  15  Johns.  Rep.  409.  See  Moyes  et  al. 
V.  Brumaiix,  3  Yeatcs,  30 ;  the  report  is  very  unsatisfactory.  But 
prima  facie  evidence  of  partnership  must  be  first  given.  1  Gallis' 
Rep.  635.  Whitney  v.  Ferris  et  al.  10  Johns  Rep.  66.  Teller  v. 
Muir,  2  Penn.  Rep.  740.  Pobins  v.  Jflllard,  6  Pick.  Rep.  464. 
Corps  v.  Robinson,  2  Wash,  C.  C.  Rep.  388.  The  case  of  Mams  v. 
Brownson,  1  Tyl.  Rep.  452,  cannot  be  considered  as  law. 

(2)  Per  Story,  J.,  1  Gallis.  Rep.  635.  And  the  acknowledgment 
will  be  sufficient  though  it  take  place  after  the  dissolution  of  a  partner- 
ship. Smith  v.  Ltcdlows,  6  Johns.  Rep.  267.  Patterson  v.  Choate, 
7  Wend.  Rep.  441.  Shelton  v.  Cocke  et  al.  3  Munf.  Rep.  191.  Mcln- 
tyre  v.  Oliver,  stcrv.  part.  2  Hawk's  Rep.  209.     See  ante,  page  79, 


194  LEGAL  REMEDIES 

And  in  a  joint  action  against  the  joint  makers  of  a  pro- 
missory note,  an  acknowledgment  by  one  of  them  within 
six  years,  will  revive  the  debt  against  the  other,  who 
signed  the  note  only  as  a  surety. (6)  So,  although  a 
nolle  prosequi  be  entered  as  to  one  defendant,  who  pleads 
his  bankruptcy,  an  admission  made  by  him  before  he 
obtained  his  certificate  has  been  ruled  to  be  evidence 

against  the  other  defendants.(c) 
[*195]       *And  the  general  rule,  allowing  the  acts  or 

declarations  of  one  partner  to  be  evidence  against 
the  others,  has  been  extended  so  far  as  to  admit  the  acts 
or  declarations  of  one  partner  to  be  evidence  against 
his  co-partners  concerning  joint  contracts  and  their  joint 
interest,  although  the  partner,  whose  acts  or  declarations 
are  given  in  evidence,  is  not  a  party  to  the  suit.  This 
extension  of  the  rule  does  not  encroach  upon  the  prin- 
ciple established  in  the  law  of  evidence,  that  the  decla- 
rations of  a  party  are  not  admissible  where  he  is  living, 
and  can  be  called  as  a  witness  to  substantiate  upon 
oath  the  fact  to  which  his  declarations  relate ;  for  where 
the  declarations  are  made  by  one  who  can  be  identified 
with  him  against  whom  they  are  oflfered,  an  exception 
has  been  engrafted  upon  that  principle ;  such  declarations 

{b)  Perham  v.  Raynal,  2  Bingh.  306. 

(c)  Grant  v.  Jackson,  Peake's  N.  P.  C.  203.  On  the  ground  of  its 
being  a  rule  in  equity  not  to  receive  the  answer  of  one  party  against 
another,  (see  Wych  v.  Meal,  3  P.  Wms.  310.  12  Ves.  361.)  it  has 
been  held,  that  in  an  action  against  a  firm,  on  a  bill  of  exchange  ac- 
cepted by  one  partner  in  the  joint  name,  the  admissions  of  the  acceptor 
in  his  answer  to  a  bill  filed  in  equity  against  him  are  not  evidence 
against  the  rest.  Rooth  v.  Quin,  7  Price,  193.(1)  And  see  Perham 
V.  Raynal,  2  Bingh.  306,  Petherick  v.  Turner,  cited  1  Taunt.  104. 
Tyrant  v.  Jackson,  Peake's  N.  P.  C.  203,  contra. 


note  (2).  Aliter  in  Pennsylvania,  Levy  v.  Cadet,  17  Serg.  &Rawle, 
126.  Searight  v.  Craighead,  1  Rawle  &  Penr.  135,  and  Kentuch/j 
Bell  V.  Morrison,  I  Peters'  Sup.  C.  Rep.  352. 

(1)  Fan  Reimsdyk  v.  Kane  et  al.  1  Gallis'  Rep.  630.  S.  C.  9 
Cranch.  153.  Chapin  v.  Coleman,  11  Pick,  Rep.  331,  contra.  But  in 
an  action  against  three  defendants,  as  parrners,  the  office  copy  of  an 
answer  to  a  bill  in  Chancery,  filed  by  one  against  the  others  is  evidence, 
without  producing  the  original,  in  order  to  establish  a  partnership. 
Studdy  V.  Sanders  et  al.  2  Dowl.  &  Ryl.  Rep.  347. 


AGAINST  PARTNERS.  195 

are  receivable,  and  the  circumstance  of  the  party  niaking 
them  being  aUve  at  the  time  of  the  trial,  is  no  objection 
to  their  reception.((^)  Thus,  in  an  action  against  one 
partner  for  money  paid  to  his  use,  the  admission  of  the 
debt  by  another  partner  is  evidence  against  the  defen- 
dant.(e)  So,  an  acknowledgment  by  one  of  several  makers 
of  a  joint  and  several  promissory  note  will  take  the  case 
out  of  the  statute  of  limitations,  as  against  any  one  of 
the  other  makers  in  a  separate  action  on  the  note  against 
him.(/)  Even  the  payment  of  a  dividend  by  the  as- 
signees of  one  of  the  makers  of  such  a  note,  within  six 
years  before  the  commencement  of  the  action  against 
the  other  maker,  has  been  held  a  sufficient  answer  to  a 
plea  of  the  statute  of  limitations  by  that  other,(^)  So, 
a  payment  of  interest  by  A  on  the  joint  and  several  note 
of  A  and  B  is  in  legal  effect  an  admission  by  both  that 
the  note  is  unsatisfied,  and  operates  as  a  new  promise 
by  all  and  each  of  the  parties  to  pay  according  to  the 
nature  of  the  instrument,  and  that  though  B  was  a  mere 
surety,  and  the  payment  was  made  without  his 
*knowledge.(A)    But  where  one  of  two  partners,  [  *196  ] 

(d)  Barough  v.  White,  4  B.  &  C.  328. 

(e)  Thwaites  v.  Richardson,  Peake's  N.  P.  C.  16. 

(/)  VVhitcomb  v.  Whiting,  Dougl.  629.  652.  Perham  v.  Raynal, 
2  Bingh.  306.  By  the  late  act  of  Parliament,  9  Geo.  4.  c.  14.  s.  1., 
which  renders  a  written  memorandum  necessary  to  the  validity  of  any 
engagement  or  promise  to  take  a  case  out  of  the  operation  of  the  statute 
of  limitations,  it  is  enacted,  that  where  there  shall  be  two  or  more  joint 
contractors,  or  executors  or  administrators  of  any  contract,  no  such  joint 
contractor,  executor  or  administrator  shall  lose  the  benefit  of  the  21  Jac. 
1.  c.  16.  (Statute  of  Limitations)  so  as  to  be  chargeable  in  respect  or 
by  reason  only  of  any  written  acknowledgment  or  promise  made  and 
signed  by  any  other  or'others  of  them  :  provided  always,  that  nothing 
herein  contained  sliall  alter  or  take  away  or  lessen  the  effect  of  any 
payment  of  any  principal  or  interest  made  by  any  person  whatsoever. 

(g)  Jackson  v.  Fairbank,  2  H.  Bl.  340.  See  Ux  parte  Dewdney, 
15  Ves.  499. 

(A)  Burleigh  v.  Stott,  2  Mann.  &  Ryl.  93.  S.  C.  8  B.  &  C.  36.  In 
the  former  report  of  this  case,  Holroyd,  J.  is  reported  to  have  said, 
"  There  can  be  no  doubt  that,  regarding  the  note  as  joint  only,  the  pay- 
ment by  one  took  the  note  out  of  the  operation  of  the  statute  as  regards 
both  the  makers.  I  think  in  justice  and  sense,  the  same  result  ought  to 
follow,  regarding  the  note  as  both  joint  and  separate.  The  debt  was  in 
reality  originally  a  joint  debt,  and  though  each  debtor  became  sepa- 
rately, he  was  still  jointly,  liable,  and  a  payment  by  one  released  7>ro  taitto 


196  '  LEGAL  REMEDIES 

who  were  the  joint  drawers  of  a  bill  of  exchange 
became  bankrupt,  and,  under  his  commission,  the  in- 
dorsees proved  a  debt  (beyond  the  amount  of  the  bill) 
for  goods  sold,  and  they  exhibited  the  bill  as  a  security 
they  then  held  for  their  debt,  and  afterwards  received  a 
dividend ;  it  was  determined  in  an  action  by  the  indorsees 
against  the  solvent  partner,  that  the  statute  of  limitations 
was  a  good  defence,  although  a  dividend  had  been  paid 
within  six  years,  inasmuch  as  the  proof  being  for  goods 
sold,  the  payment  of  the  dividend  did  not  amount  to  an 
actual  or  virtual  acknowledgment  that  there  was  any 
money  due  on  the  bill.(/)  (1)  So,  where  A  and  B  made 
a  joint  and  several  promissory  note,  and  ten  years  after 
A's  death  B  paid  interest  on  the  note;  in  an  action 
brought  upon  the  note  against  the  executors  of  A,  it  was 
held  that  the  joint  contract  having  determined  by  the 
death  of  A,  the  payment  of  interest  by  B  did  not  take 
the  case  out  of  the  statute  of  limitations,  so  as  to  make 
A's  executors  liable.(^)  And  in  all  cases  in  which  it  is 
endeavoured,  by  means  of  the  acknowledgment  of  one 
partner,  to  avoid  the  operation  of  the  statute  of  limi- 
tations in  favour  of  the  other,  it  is  necessary  that  the 
acknowledgment  should  be  clear  and  explicit  ;(2)  there- 
fore, in  an  action  on  a  joint  promissory  note,  it  is  not 
sufficient  to  destroy  the  effect  of  a  plea  of  that  statute,  to 
show  a  payment  by  a  joint  maker  to  the  payee  within  six 

both  the  joint  and  separate  liability  of  each.  The  one  receives  the  be- 
nefit of  a  payment  by  the  other,  the  same  whether  the  liability  be  joint 
only,  or  both  joint  and  separate :  in  fairness,  therefore,  he  ought  to 
incur  the  same  responsibility  in  both  cases.  In  the  case  of  a  joint  and 
several  bond,  a  release  by  the  obligee  to  one  obligor  would  clearly  des- 
troy the  joint  and  several  obligation." 

(i)  Brandram  v.  Wharton,  1  B.  &  A.  463. 

{k)  Atkins  v.  Tredgold,  2  B.  &  C.  23. 


(1)  If  one  of  two  partners  become  bankrupt  and  obtain  his  certificate, 
and  after  that  acknowledge  a  debt  due  to  the  plaintiif  by  his  partner 
and  himself,  such  acknowledgment  is  not  suflicient  to  take  the  case  out 
of  the  statute  of  limitations  in  an  action  against  him  and  his  partner  for 
such  debt,  if  his  partner  plead  the  statute  of  limitations,  and  he  plead 
his  bankruptcy.     Martin  v.  Bridges  et  al.  3  Carr.  &  Payne,  83. 

(2)  Clementson  v.  Williams,  8  Cranch,  72. 


AGAINST  PARTNERS.  196 

years,  so  as  to  throw  upon  the  defendants  the  obligation 
of  proving  that  the  payment  was  not  made  on  account  of 
the  note.(/)  The  principle  of  the  general  rule  also  extends 
to  an  admission  made  by  one  partner,  after  a  dissolution 
of  the  co-partnership ;  for,  even  in  such  a  case, 
*the  admission  will  conclude  his  co-partners,  if  [  *197  ] 
it  relate  to  a  transaction  which  occurred  pend- 
ing the  partnership.(m)(l)     Therefore,  where  the  cre- 
ditor of  a  partnership,  in  discharge  of  a  demand  against 
himself,  assigned  to  a  third  person  the  debt  owing  to 
him  by  the  firm,  it  was  determined  that  a  verbal  pro- 
mise, by  one  of  the  partners,  to  pay  such  debt  to  the  as- 
signee, was  not  within  the  statute  of  frauds :  for  it  was 
not  an  undertaking  for  the  debt  of  another,  the  old  debt 
being  extinguished  and  a  new  one  created :  and  that  the 
promise  bound  not  only  the  party  who  made  it,  but  the 
whole  partnership,  even  though  some  of  the  members  of 
the  firm  had  retired  before  the  promise  was  given,  pro- 
vided the  debt  to  which  it  had  reference  arose  out  of 
joint  contracts,  entered  into  whilst  they  continued  in  the 
partner ship.(w)     And  it  has  been  reported  to  have  been 
the  opinion  of  Lord  Kenyan,  that  a  declaration,  after  the 
dissolution  of  the  firm,  by  one  of  the  members,  as  to  the 

(/)    Holme  V.  Green,  1  Stark.  N.  P.  C.  488. 
(m)  Wood  V.  Braddick,  1  Taunt.  104.       ^ 
(n)  Lacy  v.  McNeile,  4  Dowl.  &  Ryl.  13. 


(1)  Simpson  et  ul.  v.  Geddes,  2  Bay's  Rep.  5.33.  See  also  PFm- 
chester  V.  Jackson  et  al.  3  Hayw.  Rep.  310.  311.  (7'mnessee),  and 
the  dictum  of  Story,  J.,  recognising  JFood  v.  Braddick,  1  Gallis, 
Rep.  635,  636.  See  1  McCord's  Cha.  Rep.  172.  17  Mass.  Rep.  227. 
A  different  rule  prevails  in  New  York,  and  the  weight  of  American 
authority  is  in  conformity  Avith  it.  Mercer  v.  Sayer  et  al.  Anth.  N. 
P.  Rep.  119.  Hacklcy  v.  Patrick  et  al.  3  Johns.  Rep.  536.  fValden 
et  al.  V.  Sherburne  et  al.  15  Johns.  Rep.  409.  Baker  v.  Stackpoole,  9 
Cow.  Rep.  420.  Hopkins  v.  Banks.  7  Cow.  Rep.  650.  Shelton  v. 
Cocke  et  al.  3  Munf.  191.  Bootes  v.  Welford  cf  Co.  4  Munf.  215. 
Walker  et  al.  v.  Duberry,  1  Marsh.  Rep.  189.  {Kentucky).  See  also 
the  opinions  of  Swift,  C.  J.,  and  Hosmer,  J.,  in  Story  v.  Barrel  et  al. 
2  Conn.  Rep.  665.  But  the  admission  of  a  partner,  notwithstanding 
the  dissolution  of  the  partnership,  will  continue  to  be  obligatory  upon 
the  others  until  due  notice  of  the  dissolution  is  given.  Price  4'  Co.  v. 
Towsey,  3  Litt.  Rep.  423. 

34 


197  LEGAL  REMEDIES 

different  persons  of  whom  the  firm  was  composed,  is 
evidence  against  all  the  members  to  prove  the  partner- 
ship.(o)  But  the  admission  of  one  partner,  made  after 
the  partnership  had  ceased,  is  not  evidence  to  charge 
the  other,  in  any  transaction  which  has  occurred  since 
their  separation  j(p)(l)  neither  is  a  declaration  made  by 
one  of  two  partners,  during  an  existing  co-partnership, 
evidence  to  bind  his  partner  as  to  a  transaction  which 
took  place  previous  to  the  partnership,  unless  a  joint  re- 
sponsibility be  proved  as  a  foundation  for  such  evi- 
dence.(5')  Notice  to  one  of  several  partners  is  a  suffi- 
cient notice  to  all.  When  therefore  a  bill  has  been 
drawn  by  a  firm  upon  one  of  the  partners,  and  by  him 
accepted  and  dishonoured,  it  is  unnecessary  to  give 
notice  of  such  dishonour  to  the  firm ;  for  this  must  ne- 
cessarily be  known  to  one  of  them,  and  the  knowledge 
of  one  is  considered  as  the  knowledge  of  all.(r)  And  in 
such  a  case,  proof  of  the  acceptance  of  the  bill  by  the 
drawee  is  evidence,  in  an  action  against  all  the  drawers, 
that  the  bill  was  regularly  drawn.(s)  Where  the 
[*198]  joint  liability  results  not  from  *a  contract  ex- 
pressly made  with  all  the  defendants,  but  from 
the  fact  of  their  partnership,  it  may  be  removed  by  prov- 
ing a  notice  to  the  plaintiff  that  the  firm  would  not  be 
answerable  on  contracts  made  by  any  single  partner  in 
the  joint  name.(/)  So,  where  the  fact  warrants  it,  it  is 
competent  to  the  defendants  to  prove  a  dissolution  of  the 
co-partnership  previous  to  the  contract ;  this,  however, 
will  not  be  in  itself  sufficient  where  the  defendants  have 

(o)  Evans  v.  Drummond,  4  Esp.  N.  P.  C.  89.  It  is  at  least  doubt- 
ful whether  such  a  declaration  can  be  evidence  of  the  fact  of  partuer- 
nership  ;  for,  if  it  vpere  made  during  the  partnership,  it  would  be  un- 
availing, except  against  the  partner  from  whom  it  proceeded.  See 
ante,  p.  193. 

(p)  Wood  V.  Braddick,  supra. 

(q)  Catt  V.  Howard,  2  Stark,  on  Evid.  45.  S.  C.  3  Stark.  N.  P. 
C.  3. 

(r)  Porthouse  v.  Parker,  1  Campb.  82.  (s)  Id.  ibid. 

[t)  Lord  Galway  v.  Matthew,  10  East,  264.  Vice  v.  Fleming,  1 
Youn.  &  Jerv.  226. 


(1)  Simpson  v.  Geddes,  2  Bay's  Rep.  533. 


AGAINST  PARTNERS.  198 

openly  acted  as  partners,  unless  notice  to  the  plaintiff  of 
the  dissolution  be  also  proved.  It  is  sufficient,  if  the 
plaintiff,  in  the  first  instance,  prove  a  partnership  at  a 
time  anterior  to  the  contract ;  when  that  is  once  estab- 
lished, a  continuance  of  the  partnership  is  to  be  presum- 
ed, until  a  dissolution  be  proved;  and  proof  of  a  dissolu- 
tion will  still  be  insufficient,  unless  reasonable  proof  be 
given  of  notice  of  the  fact  to  the  plaintiff;  for  although 
the  partnership  may,  in  fact,  have  been  dissolved,  yet  if 
the  parties  do  not  announce  it,  they  by  their  silence,  in- 
duce strangers  to  continue  to  trust  to  the  joint  credit  of 
the  firm.(M)  And  where  notice  of  the  dissolution  is  proved, 
the  plaintiff  may  rebut  it  by  evidence  of  the  subsequent 
conduct  and  declarations  of  the  defendants,  tending  to 
induce  the  world  to  suppose  that  the  partnership  still 
subsisted ;  as  by  proof  that  they  subsequently  interfered 
in  the  management  of  the  business,  or  allowed  their 
names  to  be  used,  or  in  any  way  authorised  the  parties 
acting  in  the  concern  to  make  use  of  their  names  and 
credit.(tj)  A  mere  statement  in  conversation  by  one 
partner  that  he  has  ceased  to  be  a  partner,  is  not  admis- 
sible evidence  on  his  part  to  prove  a  notice  of  dissolu- 
tion.(z^) 

A  party  to  the  suit  on  record  cannot,  generally,  be  a 
witness  at  the  trial  for  himself  or  for  a  joint  suitor, 
against  the  adverse  party,  on  account  of  the  immediate 
and  direct  interest  which  he  has  in  the  event,  either  from 
having  a  certain  benefit  or  loss,  or  from  being  liable  to 
costs.(:p)  But  there  seems  to  be  no  objection  to  the  com- 
petency of  persons,  who  are  parties  to  a  suit  in  a  corpo- 
rate capacity,  and  consequently  not  individually 
liable  to  costs,  *and  who  are  free  from  all  interest  [  *199  ] 
in  the  question.     Thus,  in  an  action  against  the 

(?<)  3  Stark,  on  Evid.  1078. 

[v)  Newsome  v.  Coles,  2  Campb.  617.  And  see  Williams  v.  Keats, 
2  Stark.  N.  P.  C.290.  Dolman  tJ.  Orchard,  2  C.  &  P.  104.  Stables  v. 
Eley,  1  C.  &  P.  614.  Where  a  seceding  partner's  name  is  continued 
in  the  firm  by  express  agreement,  he  will  be  liable  to  persons  acquaint- 
ed with  the  fact  of  the  dissolution  under  those  circumstances,  inasmuch 
as  such  an  agreement  implies  an  undertaking  to  continue  responsible 
for  the  engagements  of  the  firm.     Brown  v.  Leonard,  2  Chitt.  121. 

{w)  Dolman  v.  Orchard,  supra.         {x)   1  Phill.  on  Evid.  71. 


199  LEGAL  REMEDIES 

governors  of  the  Foundling  Hospital  for  the  amount  of 
work  done  by  the  plaintiff,  Lord  Kenyon  admitted  seve- 
ral of  the  governors  to  prove  the  badness  and  insuffi- 
ciency of  the  work.(?/)  So,  where,  iii  an  action  against 
several,  one  pleads  his  bankruptcy,  and  the  plaintiff 
enters  a  nolle  prosequi  as  to  him,  he  is  thereby  rendered 
a  competent  witness  for  the  other  defendants.(z)  But 
if  the  plaintiff,  instead  of  entering  a  nolle  prosequi,  take 
issue  on  the  plea  of  bankruptcy,  the  bankrupt  cannot  be 
admitted  to  give  evidence  for  the  rest,  though  he  may 
have  received  his  certificate ;  for,  in  case  of  a  verdict 
for  the  plaintiff  he  is  liable  to  the  costs  of  the  action.(a) 
Nor,  on  proof  of  his  certificate,  is  he  entitled  to  a  ver- 
dict during  the  progress  of  the  cause,  in  order  that  he 
may  be  introduced  as  a  witness  for  his  co-defendants.(6) 
So,  in  an  action  on  a  joint  contract  against  two  defen- 
dants, where  one  let  judgment  go  by  default.  Lord  Ken- 
yon refused  to  admit  him  as  a  witness  for  the  other  de- 
fendant, to  negative  the  contract;  for,  if  negatived  as 
to  one  it  fails  as  to  the  other,  and  the  plaintifT  could  not 
make  use  of  the  judgment  by  default  against  him.(c) 
Nor  is  a  defendant  so  situated  a  competent  witness  for 
the  plaintiff  to  prove  that  the  other  defendant  was  a 
party  to  the  contract ;  for  if  the  plaintiff  should  succeed, 
he  would  be  entitled  to  contribution  from  the  co-defen- 
dant, and  if  the  plaintiff  should  fail,  he  himself  would  be 
liable  to  the  whole  of  the  demand.(f/)  (1)  And  a  release 

(y)  Weller  v.  The  Governors  of  Foundling  Hospital,  Peake's  N. 
P.  C.  153.     Barret  v.  Gore,  3  Atk.  401  ;  but  see  Whitmore  v.  Wilks, 

1  M.  &  Malk.  N.  P.  C.  214,  and  3  C.  &  P.  364. 

(z)  Mclver  v.  Humble,  16  East,  171.  S.  P.  ruled  at  Lancaster  by 
Le  Blanc,  J.  ex  relatione  Park,  J.  1  B.  Moore,  339.    Moody  v.  King, 

2  B.  &  C.  558. 

(«)  Raven  v.  Dunning,  3  Esp.  N.  P.  C.  25.  S.  P.  Currie  v.  Child, 

3  Camb.  283. 

{b)  Emmett  v.  Butler,  7  Taunt.  599.  S.  C.  1  B.  Moore,  332. 
(c)  Brown  v.  Fox,  Ex.  Sum.  Ass.  1789.  1  Phill.  on  Evid.  78. 
{d)  Brown  v.  Brown,  4  Taunt.  752. 

(1)  And  where  two  partners  are  sued,  and  the  process  is  served  upon 
one  of  them  only,  the  defendant  not  served  is  not  a  competent  witness 
for  the  plaintiff.  Bill  v.  Porter,  9  Conn.  Rep.  23.  Ptirviance  v. 
Dryden,  3  Serg.  &  Rawle,  402  : — observe  the  facts  of  the  case  without 


AGAINST  PARTNERS.  199 

from  the  plaintiff  would  not  render  him  competent ;  for 
one  objection  to  his  admissibility  is,  that  his  evidence 
might  tend  to  inculpate  his  co-defendant,  and  therefore, 


reference  to  the  marginal  abstract; — and  the  plaintiff  in  such  a  case 
cannot  compel  a  defendant  not  served  or  appearing  to  testify  on  his  be- 
half.    Taylor  v.  Henderson,  17  Serg.  &  Rawle,  453.     Nor  is  a  part- 
ner whose  non-joinder  is  pleaded  in  abatement,  a  competent  witness  for 
the  defendant  to  prove  the  fact  of  partnership.     Spaulding  v.  Smith,  1 
Fairf.  Rep.  363.     In  Norman  v.  Norman  8,-  Harvey,  2  Yeates,  154,  it 
was  decided,  that  in  a  suit  against  two  partners,  one  of  them,  who  had 
not  been  arrested,  and  to  whom  non  est  inventus  was  re'turned,  but  who 
had  subsequently  to  the  institution  of  the  suit,  paid  the  plaintiff"  one 
half  of  his  demand,  might  be  sworn,  notwithstanding  his  co-defendant 
objected  to  his  testimony  on  the  ground  of  his  interest  in  the  event  of 
the  cause,  to  prove  the  quantum  of  the  demand,  on  the  part  of  the  plain- 
tiff, although  not  compellable  to  give  testimony.  The  Court  considered 
the  witness  as  alone  possessing  the  right  of  objection  to  be  examined. 
And  in  a  late  case,  in  an  action  against  A.  &  B.  as  partners,  upon  an 
alleged  engagement  by  the  firm.  A.,  who  was  not  found,  or  served  with 
process,  was  offered  as  a  witness  in  favour  of  B.,  having  been  released 
by  B. ;  and  it  was  held,  that  the  suit  was  regularly  abated  as  to  B.  by 
the  return  that  he  was  "  no  inhabitant,"  and  he  was  no  more  a  party 
to  it  than  if  his  name  had  been  omitted  in  the  declaration  ;  that  upon 
the  score  of  interest,  the  recovery  of  the  plaintiff  against  the  defendant, 
and  satisfaction  from  him,  would  be  a  bar  to  their  action  against  the 
witness  ;  and  the  release  of  A.  protected  him  against  any  action  which 
B.  might  bring  against  him  for  contribution  or  otherwise.     Le  Roy  et 
al.  v.  Johnson,  2  Peters'  Sup.  C.  Rep.  186.     See,  however,  Gardiner 
V.  Levaud.  2  Yeates,  185.  Black  v.  Marvin,  2  Penns.  Rep.  138.     In 
Fawcett  v.  Wrashall,  2  Carr.  &  Payne,  305,  the  plaintiff  had  delivered 
separate  bills  to  two  persons,  who  had  been  partners,  one  of  whom  paid 
the  bill  delivered  to  him  ;  the  other  was  sued  alone,  but  there  was  no 
plea  in  abatement.  At  the  trial,  the  plaintiff  called  the  partner  not  sued 
to  prove  the  liability  of  the  defendant,   and  though  objected  to  on  the 
ground  of  interest,  he  was  admitted.     And  a  plaintiff  who  is  willing  to 
testify,  may  be  called  by  a  defendant  as  a  witness,  although  he  comes  to 
defeat  the  claim  of  another  plaintiff  suing  jointly  with  himself.     Nor- 
den  v.  Williamson  <$•  Twibill,   1  Taunt.   Rep.  377.     The  parties  are 
erroneously  slated  at  the  head  of  this  case  ;  it  appears  from  the  report, 
that  Norden  was  the  defendant,  and  Tivibill,  one  of  the  plaintiffs  was 
called  by  him  as  a  witness.     So  in  equity  a  co-partner  of  the  com- 
plainants, who  is  not  a  party  to  the  suit,  is  a  competent  witness  for  the 
defendant  to  prove  the  existence  of  a  demand  against  the  co-partnership, 
of  which  the  defendant  wishes  to  avail  himself  as  a  set  off.     Gregory 
et  al.  V.  Bodge,  4  Paige's  Cha.  Rep.  556.     The  plaintiff  was  sworn  as 
a  witness,  at  the  request  of  the  defendant,  in  Miller  v.  Sturks,  13  Johns. 
Rep.  517,  and   the  court  held  that  the  defendant  could  not  afterwards 
get  rid  of  the  effect  of  his  testimony.     In  Miller  v.  McClenachan  et  al. 
1  Yeates,  144,  it  was  objected  that  one  defendant,  in  a  suit  against  part- 


199  LEGAL  REMEDIES 

without  his  consent,  his  testimony  cannot  be  received.(e) 
And  a  person  who  is  shown  to  be  a  co-partner 
[  *200  ]  with  the  defendant  in  the  subject  of  the  *action 
is,  in  general,  incompetent  to  be  a  witness  for 
him ;  because  in  the  event  of  a  verdict  for  the  plaintiff, 
he  would  be  liable  to  contribute  not  only  his  proportion 
of  the  sum  recovered,  but  also  his  share  of  the  costs : 
and  he  will  not  be  admissible,  even  although  the  ten- 
dency of  his  evidence  be  to  charge  himself  with  the 
whole  debt,  or  although  the  defendant  offer  to  release 
him.(y*)     Thus,  in  an  action  against  a  part-owner  for 
painting  the  ship,  to  which  the  defendant  pleaded  in 
abatement  that  there  were  other  part-owners  not  joined, 
and  the  plaintiff  replied  that  the  defendant  had  underta- 
ken solely  to  pay,  it  was  held  that  the  defendant  could 
not  call  the  master,  who  was  also  a  part-owner,  to  prove 
that  he  ordered  the  work  to  be  done.(^)  So,  in  an  action 
of  assumpsit  for  goods  sold  and  delivered,  the  plaintiff 
liaving  proved  the  sale  of  the  goods  to  the  defendant 
and  to  one  J.  S.,  who  were  partners  in  trade.  Lord 
Ketiyoji  held  that  J.  S.,  could  not  be  a  witness  for  the 
defendant  to  prove  that  the  goods  were  sold  to  himself, 
and  that  the  defendant  was  not  concerned  in  the  pur- 

(e)  Mant  v.  Mainwaring,  2  B.  Moore,  9.  S.  C.  8  Taunt.  139.  In 
an  action  for  a  tort,  it  has  been  ruled,  that  one  defendant  who  suffers 
judgment  by  default  is  a  competent  witness  to  prove  that  a  co-defen- 
dant who  has  pleaded  is  not  chargeable.  Ward  v.  Haydon,  2  Esp.  N. 
P.  C.  552.  Chapman  v.  Graves,  2  Campb.  334.  n.  See  Rex  v.  La- 
fone,  5  Esp.  N.  P.  C.  155. 

(/)  Simons  v.  Smith,  1  Ryan  &  Mood.  29.  Cheyne  v.  Koops,  4 
Esp.  N.  P.  C.  112.  You;ig  v.  Bairner,  1  Esp.  N.  P.  C.  103. 
cont. 

(g)  Young  V.  Bairner,  supra. 


ners,  could  not  be  sworn  to  prove  the  existence  of  the  partnership,  al- 
though he  was  willing  ;  but  a  decision  was  not  called  for,  and  the  wit- 
ness was  withdrawn.  See  also  Waggoners  v.  Gray^s  Mm.  2  Hen.  & 
Munf.  603.  A  nominal  surviving  partner  is  not  a  competent  witness 
in  support  of  an  action  by  the  executor  of  a  deceased  partner,  for  a 
partnership  debt.  Lane  ex.  v.  Carmichael,  Vern.  &  Scriv.  Rep.  380. 
Nor  is  the  widow  of  a  deceased  partner  a  competent  witness  for  the 
surviving  partner  in  an  action  by  him  as  such.  Alleii  v.  Blanchard, 
9  Cow.  Rep.  631. 


AGAINST  PARTNERS.  200 

chase,  except  as  his  servant ;  for,  said  his  Lordship,  by 
discharging  the  defendant  he  benefits  himself,  as  he  will 
be  liable  to  pay  a  share  of  the  costs  to  be  recovered  by 
the  plaintiff.(A)  (1)  And  in  an  action  against  A  for  the 
price  of  goods  sold,  B.  is  not  a  competent  witness  on  the 
part  of  the  defendant,  to  prove  that  the  goods  had  been 
sold  to  A  and  B  jointly,  and  that  they  had  been  paid  for 
by  remitting  a  debt  due  from  the  vendor  to  the  firm  of  A 
and  B.{i)  However,  to  raise  the  objection  of  incompe- 
tency, it  must  be  shown  that  the  witness  is  a  partner ;  it 
is  not  sufficient  merely  to  suggest  it.  Thus,  in  action 
for  goods  sold  and  delivered,  a  witness  is  competent  to 
prove  that  the  goods  were  supplied  upon  his  credit,  and 
for  his  use,  although  it  be  suggested  that  he  is  a  partner 
with  the  defendant.(^-)(2)  But  although,  during  the 
subsistence  of  a  partnership,  one  partner  is  generally 
incompetent  to  defeat  the  claim  of  the  plaintiff  on  ac- 
count of  the  direct  interest  he  has  in  the  event  of  the 
cause,  yet  if  the  interest  of  the  witness  incline  him  to 
each  of  the  parties,  so  as  upon  the  whole  to  make  him 
indifferent,  he  will  be  competent  to  give  evidence.  Thus, 
one  of  the  joint  makers  of  a  promissory  note  is  a  compe- 
tent witness,  on  the  part  of  the  plaintiff,  to  prove 
*the  signature  of  the  defendant,  the  other  joint  [  *201  ] 

(/i)  Goodacre  v.  Breame,  Peake's  N.  P.  C.  174, 
(i)   Evans  v.  Yeatherd,  2  Bingh.  133. 
(k)  Birt  V.  Hood,  1  Esp.  N.  P.  C.  20. 


(1)  See,  however,  Bimtee  v.  Warree,  1  Dowl.  &  Ryl.  Rep.  106,  par- 
ticularly the  opinion  of  Best,  J.  In  Maryland,  it  has  been  decided, 
(1827)  in  an  action  by  the  payee  of  a  partnership  note  against  two 
partners,  one  of  whom  only  was  arrested  and  pleaded,  that  the  other 
partner  was  a  competent  witness  for  the  defendant  to  prove  that  the 
consideration  of  the  note  was  for  the  witness's  exclusive  benefit,  given 
to  secure  a  debt  due  by  his  account,  and  that  when  he  signed  the  note  he 
informed  the  plaintiff  that  he  was  not  authorized  to  sign  the  defendant's 
name  to  it.     Robertson  v.  Mills,  2  Harr.  &  Gill,  98. 

(2)  Where  two  are  jointly  concerned  in  a  contract  of  sale,  their  inte- 
rest may  be  severed  by  a  parol  agreement,  on  good  consideration ;  and 
one  of  them  after  this  dissolution  of  their  joint  concern,  is  a  competent 
witness  for  the  other,  in  relation  to  a  matter  growing  out  of  such  con- 
tract; such  witness  having  parted  with  all  his  interest  in  the  contract. 
Smith  V.  .^llen,  18  Johns.  Rep.  245. 


201  LEGAL  REMEDIES 

maker ;(/)  for  if  the  plaintiff  should  recover  against 
the  defendant,  the  witness  would  be  liable  to  the 
defendant  for  contribution ;  if,  on  the  other  hand,  the 
plaintiff  fail,  he  may  resort  to  the  witness  for  the  whole, 
and  then  the  witness  would  be  entitled  to  the  contribu- 
tion from  the  defendant ;  so  that,  in  either  view  of  the 
case,  the  witness  is  indifferent  in  point  of  interest.(m)(l) 
So,  in  an  action  against  one  partner,  his  copartner  is 
admissible  as  a  witness  on  the  part  of  the  plaintiff,  to 
prove  the  defendant's  liability.  Thus,  in  assumpsit  for 
goods  sold  and  delivered,  and  the  general  issue  pleaded, 
a  witness  called  by  the  plaintiff  admitted  on  the  voir  dire, 
that  he  was  jointly  liable ;  and  on  a  motion  to  enter  a 
nonsuit  on  account  of  his  incompetency,  it  was  held  that 
his  joint  liability  did  not  render  him  incompetent.(n) 
And  in  an  action  brought  to  charge  A,  as  a  partner 
in  a  trading  company,  a  witness,  who  by  other  evidence 
than  his  own,  appeared  to  be  a  shareholder  in  the  Com- 
pany, was  held  to  be  competent  to  prove  that  A  was  a 
partner,  (o)  So  where  one  partner  drew  a  bill  in  the 
name  of  the  partnership  firm,  and  gave  it  in  payment  to 
a  separate  creditor  in  discharge  of  his  own  debt,  the 
Court  of  King's  Bench  held,  that  in  an  action  by  such 
creditor  against  the  acceptor,  either  of  the  partners 
might  be  called,  on  the  part  of  the  defendant,  to  prove 
that  the  partner  who  drew  the  bill  had  no  authority  to 
draw  it  in  the  name  of  the  firm ;  and  that  the  bankruptcy 
of  the  partners  would  not  vary  the  question  as  to 
the  competency  of  the  witness.(/7)  And  in  a  late  case, 
which  was  an  action  of  assumpsit  for  the  non-delivery 

(Z)  York  V.  Blott,  5  Mau.  &  Selw.  71. 

{m)  1  Phill.  on  Evid.  68.    . 

(n)  Blackett  v.  Weir,  5  B.  &  C.  385;  and  see  Fawcett  v.  Wrathall, 
2  C.  &  P.  305 

(o)  Hall  V.  Curzon,  9  B.  &  C.  646.  In  Luckett  v.  Graham,  1  Stra. 
35,  which  was  an  action  against  one  of  three  obligors,  a  co-obligor  was 
allowed  to  be  a  witness  to  prove  the  execution  of  the  bond  by  the  de- 
fendant. 

(p)  Ridley  v.  Taylor,  13  East,  175. 


(1)  See  Bulkley  et  al.  v.  Dayton  et  cd.  14  Johns.  Rep.  387. 


AGAINST  PARTNERS.  201 

of  goods,  and  for  money  had  and  received,  and  the  de- 
fendant pleaded  in  abatement  that  the  promises  were 
made  jointly  with  A  and  B,  and  not  by  the  defendant 
alone,  it  was  determined  that  A  was  a  competent  wit- 
ness for  the  plaintiff,  to  prove  that  the  defendant  was 
not  authorised  or  employed  by  the  partners  to  make  the 
contract,  and  that  he  received  the  money  to  his  own 
use ;  for,  although  the  plaintiff  should  succeed, 
the  *defendant  would  not  on  that  account  be  [  *202  ] 
precluded  from  suing  the  other  partners  for  con- 
tribution ;  the  record  in  this  action  would  not  operate 
as  an  estoppel  against  him  on  that  occasion,  because 
there  is  no  mutuality  out  of  which  the  estoppel  can  arise ; 
the  record  could  only  be  used  as  a  medium  of  proof,  to 
show  that  this  defendant  had  paid  in  the  action  a  cer- 
tain sum,(y)  and  in  this  point  of  view  the  verdict  in 
favour  of  the  plaintiff  must  be  considered  rather  as  pre- 
judicial to  the  witness.(r)     So,  A  would,  under  such  cir- 
cumstances,  have   been  a  competent  witness  for  the 
defendant  to  negative  his  several  liabihty;   and  if,  on 
being  called,  he  should  have  denied  the  partnership,  the 
defendant  would  still  have  been  at  liberty  to  have  proved 
its  existence  by  other  witnesses ;  for,  although  a  party 
will  not  be  permitted  to  produce  general  evidence  to  dis- 
credit his  own  witness,  yet  he  may  show  by  other  testi- 
mony, that  the  witness  was  mistaken  as  to  the  fact  which 
he  was  called  to  establish.(s)     Where  there  has  been  a 
dissolution  of  the  partnership,  one  partner  is  a  competent 
witness  for  the  other  in  any  transaction  which  has  oc- 
curred since  their  separation.      Therefore  where,  two 
days  after  a  dissolution,  a  bill  was  drawn  in  the  names 
of  the  quondam  partners,  which  was  accepted  and  paid 

(<7)  See  Evans  v.  Yeatherd,  2  Bingh.  133. 

(r)  Hudson  v.  Robinson,  4  Mau.  &  Selw.  475.  S.  P.  Cossham 
V.  Goldney,  2  Stark.  N.  P.  C.  414. 

(s)  Ewer  V.  Ambrose  3  B.  &  C.  746.  Where  a  witness,  called  by' 
the  defendant  to  prove  a  partnership,  disproves  it,  the  answer  of  the 
witness  to  a  bill  in  Chancery,  in  which  he  swore  that  he  was  a  partner, 
is  not  admissible  in  evidence,  on  the  part  of  the  defendant,  to  prove 
substantively  the  partnership;  and  it  is  doubtful  whether  it  is  re<;eivable 
at  all,  because  the  only  effect  of  it  seems  to  be  that  of  impeaching  his 
credit.     Id.  ibid. 

35 


202  LEGAL   REMEDIES 

by  a  third  person  without  consideration ;  in  an  action 
by  the  acceptor  against  the  partners  to  recover  the 
money  so  paid,  to  which  one  of  them  pleaded  his  bank- 
ruptcy and  certificate,  and  the  plaintiflf  entered  a  nolle 
prosequi  as  to  him,  it  was  held  that  he  was  a  competent 
witness  for  the  other  defendant,  to  prove  that  the  bill  was 
accepted  for  his  own  individual  accommodation,  and  not 
jointly  for  him  and  his  former  partner.(^)  It  has  been 
ruled,  that  a  partner  who  has  obtained  his  certificate 
under  a  joint  commission  is  not  a  competent  witness  to 
prove  either  of  the  requisites  to  support  the  commis- 
sion.(?«)(!) 
[  *203  ]  *Having  pursued  our  inquiries  relative  to  ac- 
tions against  partners  through  their  various 
stages,  so  far  at  least  as  falls  within  the  compass  of  the 
present  treatise,  it  now  remains  to  be  ascertained  in 
what  manner  a  judgment  obtained  against  them  in  a 
civil  action  can  be  enforced.  The  action  being  joint, 
the  judgment,  of  course,  ensues  the  nature  of  the  action, 
and  is  joint  likewise.  In  executing  such  a  judgment,  no 
difficulty  arises ;  the  whole  of  the  personal  eflfects  of  the 
partnership,  or  a  sufficient  quantity  thereof  to  satisfy 
the  sum  recovered,  may  be  seized  and  sold  under  a  writ 
o{  fieri  facias  founded  upon  the  judgment,  in  the  same 
manner  as  if  they  were  the  sole  property  of  one  defen- 
dant, against  whom  a  separate  judgment  had  been  ob- 
tained.(2)     Besides  the  right  possessed  by  the  judgment 

(/)  Moody  V.  King,  2  B.  &  C.  558. 

{u)  Flower  v.  Herbert,  2  H.  Bl.  279,  note  (a). 


(1)  But  upon  a  motion  to  discharge,  upon  common  bail,  a  defendant, 
a  dormant  partner  engaged  in  a  limited  concern,  and  not  in  the  general 
partnership  of  the  house,  for  whose  use  a  note  was  discounted,  the  tes- 
timony of  one  of  the  partners  in  the  general  concern,  who  was  a  cer- 
tificated bankrupt,  was  offered  to  prove  the  fact,  that  the  defendant  was 
not  engaged  in  the  general  partnership,  and  received  by  the  Court  upon 
the  ground,  that  in  such  summary  inquiries  by  the  Court,  the  practice 
authorised  it.     Bank  of  Pennsylvania  v.  Hadfeg  et  al.  3  Yeates,  560. 

(2)  The  interest  of  a  partner  who  has  not  been  served  with  process, 
or  appeared  to  the  action,  in  the  partnership  cfi'ects,  may  be  sold  under 
an  execution  issued  upon  a  judgment  obtained  against  the  other  part- 


AGAINST    PARTNERS.  203 

creditor  against  the  joint  property,  he  may  also  seize 
the  separate  effects  of  each  or  any  of  the  individual 
partners.(t;)     He  may  likewise  extend  the  real  estates  of 
which  the  partners  may  be  seised,  or  he  may  sue  out  a 
joint  writ  of  capias  ad  satisfaciendum,  and  execute  it 
ilpon  the  persons  of  all  or  any  of  the  partners.(l)     But 
where  a  judgment  is  obtained  against   an   individual 
partner  who  has  an  interest  in  the  capita],(iy)  for  his 
separate  debt,  and  the  creditor,  after  taking  out  execu- 
tion, seeks  to  enforce  it  against  the  joint  property  (for 
he  has  an  election,  either  to  take  the  separate  estate  of 
his  debtor,  or  his  debtor's  share  of  the  joint  estate,)  it 
seems  to  be  a  very  difficult  thing  to  determine  with  cer- 
tainty in  what  manner  it  is  to  be  done.     It  is  clear  the 
separate  creditor  has  only  a  right  to  such  interest  in  the 
joint  property,  as  upon  a   fair  adjustment  of  accounts 
could  be  claimed  by  the  debtor  himself;  and  although  it 
may  be  represented,  that  the  world  cannot  know  what 
is  the  distinct  interest  of  each,  and  therefore  that  it  is 
better  his  apparent  should  be  considered  as  forming  his 
actual  interest,  yet  courts  of  equity  (and  in  awarding 
execution  courts  of  law  have  professed  to  follow  courts 
of  equity)  have  long  held  otherwise,  considering  it  not 
to  be  equitable.     The  debtor  may  not  be  interested  in 
an  equal  moiety ;  indeed,  after  the  partnership  accounts 
are  taken,  his  apparent  interest  may,  in  reality,  dwindle 

{v)  Per  Lord  Eldon,  Ex  parte  Ruffin,  6  Ves.  119.  Bolton  v.  Pul- 
ler, 1  Bos.  &  Pul.  547. 

[w)  \n  Ex -parte  Hamper,  17  Ves.  404.  Lord  i;ZfZo>i  expressed 
his  opinion  to  be,  that  where  the  interest  of  a  dormant  partner  is  confined 
to  the  profits,  but  does  not  extend  to  the  capital,  his  separate  creditor 
cannot  issue  execution  against  the  effects  of  the  partnership,  even  sub- 
ject to  an  account. 


ners.     Taylor  v.  Henderson,  17  Serg.  &  Rawle,  456,  457.  Per  Wil- 
liams, J.,  9  Conn.  Rep.  28. 

(1)  Per  TiLGHMAN,  C.  J.,  Bell  v.  Newman,  5  Serg.  &  Rawle,  86. 
Where  a  creditor  has  separate  judgments  against  each  of  two  partners, 
the  partnership  property  will  be  bound  to  the  same  extent  as  if  the 
amount  of  both  judgments  had  been  included  in  a  joint  judgment  against 
both  partners.  Brinkerhoff  et  al,  v.  Marvin  et  al.  5  Johns.  Cha. 
Rep.  320. 


204  LEGAL   REMEDIES 

to  nothing.  It  is  obviously  difficult,  therefore, 
[  *204  ]  *to  maintain  as  equitable  a  proceeding  at  law 

which  permits  a  creditor  of  one  partner,  without 
any  attention  to  the  rights  of  the  partners  themselves, 
to  take  one  half  of  a  chattel  belonging  to  them,  as  if  it 
were  perfectly  clear  that  the  actual  interest  of  each  was 
in  a  moiety. (^)  Courts  of  law,  however,  have  re- 
peatedly laid  down,(y)  that  they  will  sell  the  actual  inte- 
rest of  the  partner,  professing  to  execute  the  equities 
between  the  parties,  but  forgetting  that  a  court  of  equity 
ascertained  previously  what  was  to  be  sold.  Indeed,  it 
would  be  impossible  for  a  court  of  law  to  ascertain 
what  was  the  interest  to  be  sold,  and  what  were  the 
equities  depending  upon  the  accounts  of  the  partners 
for  years.(2')(l) 

At  law,  the  rule  was,  in  one  case,  stated  by  Lord  Ch. 
J.  Holt  to  be,  that  where  there  is  execution  against  one 
of  two  partners,  the  sheriff  must  seize  all  the  goods ; 
because  the  moieties  are  undivided :  for  if  he  seize  but  a 
moiety,  and  sell  that,  the  other  will  have  a  right  to  a 
moiety  of  that  moiety;  but  he  must  seize  the  whole, 
and  sell  a  moiety  thereof  undivided,  and  the  vendee  will 
be  tenant  in  common  with  the  other  partner.(a)(2)  The 
rule  as  thus  laid  down  seems  to  have  been  adopted  in 
two  subsequent  cases.(6)  But  in  a  still  later  case,(c) 
the  same   learned  Chief  Justice  qualified  the  rule,  and 

{x)  See  Button  v.  Morrison,  17  Ves.  201. 

(y)  Backhurst  v.  Clinkard,  1  Show.  173.  Eddie  v.  Davidson, 
Dougl.  650 ;  and  see  Scott  v.  Scholey,  8  East,  467. 

{z)  Per  Lord  Eldon  in  Waters  v.  Taylor,  2  Ves.  &  Bea.  301.  See 
also  In  re  Wait,  1  Jac.  &  Walk.  608. 

(a)  Heydon  v.  Heydon,  1  Salk.  392. 

(6)  See  Pope  v.  Haman,  Comb.  217.  Marriott  v.  Shaw,  Com. 
Rep.  277. 

(c)  Backhurst  v.  Clinkard,  1  Show.  173.;  and  see  the  note  sub- 
joined to  this  case,  from  which  it  appears  that  the  same  point  had  been 
resolved  the  day  before,  and  that  Ch.  J.  Pollexfen  agreed  in  opinion. 


(1)  See  2  .Johns.  Cha.  Rep.  549.  16  Johns.  Rep.  106,  note  (c). 

(2)  Per  RoANK,  J.,  Shaver  v.  Mliitc  et  at.  6  Munf.  113.  Per 
Curiam,  3/erserea?f  v.  Norton,  15  Johns.  Rep.  180.  Per  McKean, 
C.  J.,  2  Ball.  278. 


AGAINST  PARTNERS.  204 

held  tliat,  although  generally  speaking,  the  partners 
have  joint  and  undivided  interest,  yet  that,  to  some 
purposes,  their  possession,  as  well  as  their  interest  is 
several ;  and  that,  under  an  execution,  only  the  moiety 
of  the  partner  who  is  the  defendant  can  be  seized  and 
sold,  for  the  property  of  the  other  moiety  is  not  affected 
by  the  judgment;  and  in  a  more  recent  case((Z)(l) 
where  there  had  been  judgment,  a  fieri  facias  against 
one  of  two  partners,  and  all  the  partnership  goods  were 
seized  in  execution,  upon  an  application  to  the  King's 
Bench  by  the  solvent  partner,  the  court  held, 
that  the  sheriff  could  not  sell  *more  than  a  [  *205  ] 
moiety. (e)  (2)  In  Skipp  v.  Harwood,(f)  ac- 
cording to  Lord  Mansfield's  note,(^)  Lord  Hardwicke 
entertained  the  same  opinion  ;  he  thought  that  only  the 
undivided  share  of  the  debtor  could  be  taken,  and  that 
in  the  same  manner  as  the  debtor  himself  had  it,  and 
subject  to  the  rights  of  the  other  partner ;  for,  as  an  exe- 
cution against  one  partner  for  his  separate  debt  ought 
not  to  put  the  solvent  partner  in  a  worse  condition, 
therefore  he  must  have  all  proper  allowances  made  him 
before  the  judgment  creditor  could  have  the  share  of  his 
debtor  applied  in  satisfaction  of  the  judgment.     Upon 

{d)  Jacky  v.  Butler,  2  Lord  Raym.  871. 

(e)  See  also  Barker  v.  Goodair,  1 1  Ves.  78.  Hankey  v.  Garret,  1 
Ves.  jun.  236.  S.  C.  3  Bro.  C.  C.  457. 

(/)  Reported  1  Ves.  Jun.  239,  by  the  name  of  West  v.  Skipp.  S. 
C.  2  Swanst.  586. 

[g)  See  Fox  v.  Hanbury,  Cowp.  445. 


(1)  The  solvent  partner  may  bring  an  action  at  law  (trespass  or 
trover,,  at  his  election,)  against  the  sheriff,  if  he  sell  more  than  a 
moiety.     1  Gallis.  Rep.  370.  Melville  v.  Broivn,  15  Mass.  Rep.  82. 

(2)  If  the  sheriff  seize  the  whole  of  the  partnership  effects,  the 
Court,  upon  motion,  will  order  them  to  be  restored.  Matter  of  Smith, 
16  Johns.  Rep,  102.  And  perhaps  the  partners  might  maintain  trover 
against  the  sheriff's  vendee,  for  the  goods,  if  he  took  possession  of 
them.  Wilson  et  al.  v.  Conine,  2  Johns.  Rep.  280.  But  not  replevin — 
the  remedy  of  the  other  partners  in  such  case,  where  there  arc  unliqui- 
dated partnership  accounts  is,  to  obtain  an  order  staying  proceedings 
on  the  execution  till  an  account  be  taken  in  equity.  Schriigam  v.  Car- 
ter, 12  Wend.  Rep.  131. 


205  LEGAL  REMEDIES 

this  footing  it  is,  that  courts  of  law  now  profess  to  act 
in  awarding  execution  against  the  joint  effects ;  if  it 
were  otherwise,  the  party  claiming  and  deriving  title 
under  an  execution  would  be  in  a  better  situation  than 
the  partner  against  whom  the  judgment  was  obtained, 
which  would  be  wholly  inconsistent  with  the  acknow- 
ledged and  declared  principles  of  the  law.(^)  (1)  Con- 
veniency  and  justice  certainly  require  this  mode  of 
proceeding,  as  it  enables  the  other  partner  to  buy  in  the 
share  sold,  and  thereby  prevent  the  business  from  being 
broken  up  or  disturbed :  and  the  vendee,  if  a  stranger, 
will  only  succeed  to  the  share  due  to  the  defendant  upon 
a  balance  being  struck,  thus  preventing  the  defendant 
from  being  the  means  of  carrying  out  of  the  partnership 
funds  more  than  he  is  himself  really  entitled  to.  The 
creditor  of  any  one  partner  may  therefore  take  in  exe- 
cution that  partner's  interest  in  all  the  tangible  property 
of  the  partnership  ;(i)  (2)  but  the  levy  under  the  execu- 
tion transfers  no  part  of  the  joint  property,  it  merely 
gives  a  right  to  an  account,  each  partner  having  an  inte- 
rest, not  in  the  whole,  but  in  the  surplus  merely.(A:)  (3) 
The  joint  property  must  be  delivered  from  the  joint 
debts ;  if  the  joint  estate  be  insolvent,  the  separate  cre- 

{h)  Fox  V.  Hanbury,  Cowp.  445.  In  the  late  case  of  Burton  v.  Green, 
3  C.  &  P.  N.  P.  C.  308,  it  was  considered  difficult  to  say,  what  inte- 
rest could  be  taken  by  the  sheriff  under  an  execution  against  one  of 
several  partners  for  his  separate  debt ;  but  semble  he  will  not  become 
tenant  in  common  with  the  other  partners. 

(i)  Chapman  v.  Koops,  3  Bos.  &  Pul.  289.    See  also  17  Ves.  206. 

{k)  Per  Lord  Eldon  in  Button  v.  Morrison,  17  Ves.  201  ;  see  also 
Rex  V.  Sanderson,  1  Wightw.  50. 


(1)  Lyndon  V.  Gorham  et  al.  1  Gallis.  Rep.  368.  Matter  of  Smith, 
10  Johns.  Rep.  106.     Nicoll  v.  Mumford,  4  Johns.  Cha.  Rep.  525. 

(2)  Church  v.  Knox,  2  Conn.  Rep.  516. 

(3)  Gilmore  v.  N.  A.  Land  Co.  1  Peters'  Rep.  460.  Moody  v. 
Payne,  2  Johns.  Cha.  Rep.  548.  Church  v.  Knox,  2  Conn.  Rep.  517. 
Brewster  v.  Hammet,  4  Conn.  Rep.  540.  Barber  v.  Hartford  Bank, 
9  Conn.  Rep.  407-  Wister  v.  Richards,  10  Conn.  Rep.  37.  Hadduck 
V.  Wilmarlh,  5  N.  Hamp.  Rep.  189.  Comm.  Bank  v.  Wilkins,  9 
Greenl.  Rep.  34.  The  U.  States  v.  Hack,  8  Peters'  Sup.  Ct.  Rep. 
271.  Mutter  of  Smith,  16  Johns.  Rep.  106.  PFilson  et  al.  v.  Gibbs, 
2  Johns.  Rep.  280.  2  Dall.  279,  opinion  ofYEAXEs,  J.,  Knox  v.  Sum- 


AGAINST  PARTNERS.  205 

ditor  cannot  reap  the  fruits  of  his  judgment.(/)  An 
account  must  hkewise  be  taken  between  the 
partnership  and  *the  individual  partner;  for  [*206] 
until  that  be  taken,  his  interest  in  the  surplus  of 
the  joint  effects  cannot  be  ascertained.(m)  But  although 
courts  of  law  assume  to  award  execution  on  the  equita- 
ble principles  we  have  stated,  their  powers  are  inade- 
quate to  the  accomplishment  of  their  intention.  A  court 
of  law  has  no  authority  to  restrain  an  execution  against 
partnership  effects,  or  to  direct  an  inquiry  as  to  the 
quantum  of  interest  of  the  partner  who  is  sued.  In  one 
case,  indeed,(?0  the  Court  of  King's  Bench  suspended 
an  execution,  and  directed  the  Master  to  take  an  account 
of  the  share  of  the  partnership  effects,  to  which  the  as- 
signees of  the  other  partner  (he  having  become  bank- 
rupt) were  entitled,  and  ordered  the  sheriff  to  pay  a  part 
of  the  money  levied,  equal  to  the  amount  of  such  share, 
to  the  assignees.  But  there  no  objection  was  made  to 
the  sale  by  the  party  applying,  or  to  an  account  being 
taken  by  the  Master  by  the  party  levying,  though  he 
denied  the  title  of  the  bankrupt  partner  to  any  of  the 
goods.(o)     Where  the  plaintiff,  in  the  execution,  objects 

(/)  Taylor  u.  Fields,  4  Ves.  639.     S.  C.  15  Ves.  559,  in  note. 
\m)  Id.  ibid.     Waters  v.  Taylor,  2  Ves.  &  Bea.  301.     Barker  v. 
Goodair,  11  Ves.  78. 

(n)  Eddie  v.  Davidson,  Dougl.  650. 

(o)  Per  Chambre,  J.,  Chapman  v.  Koops,  3  Bos.  &  Pul.  289. 

mers,  4  Yeates,  477.  Pierce  v.  Jackson,  Fisk  v.  Herrick,  6  Mass. 
Rep.  242,  271.  11  Mass.  Rep.  249,  472.  Lyndon  v.  Gorham  et  al.  1 
Gallis.  Rep.  369.  Crane  v.  French  et  al.  1  Wend  Rep.  311.  Dunham 
V.  Murdock,  2  Wend.  Rep.  554.  8  Wend.  Rep.  444.  In  Maryland, 
it  has  been  decided,  that  one-third  of  the  partnership  effects  of  three 
partners  residing  in  England,  and  having  there  become  bankrupts,  might 
be  attached  by  a  citizen  of  that  state,  for  a  debt  due  to  him  by  one  of  the 
partners,  and  that  the  attaching  creditor  might  have  judgment  of  con- 
demnation, without  showing  the  state  of  the  account  as  between  the 
other  partners  and  the  partner  whose  interest  was  attached.  Wallace 
et  al.  V.  Patterson  et  al.  2  Har.  &  McHen.  Rep.  463,  and  the  law 
seems  to  be  so  in  Pennsylvania.  McCarty  v.  Emlen,  2  Dall.  277.  S. 
C.  2  Yeates,  190,  overruling  McComb  v.  Dunch,  2  Dall.  73.  The 
reasoning,  however,  of  Mr.  Justice  Yeates,  who  dissented  in  Emlen  v. 
McCarty,  is  entitled  to  most  weight,  and  would  now,  in  all  probabili- 
ty, be  deemed  conclusive. 


206  LEGAL    REMEDIES 

to  such  a  reference,  a  court  of  law  having  no  jurisdiction 
to  direct  a  partnership  account  to  be  taken,  cannot  in- 
terfere, since,  without  the  consent  of  all  parties,  it  has 
no  power  to  authorise  its  officers  to  inquire  into  such 
matters  of  account  as  are  the  proper  subjects  of  investi- 
gation in  a  court  of  equity  •,(p)  unless,  indeed,  an  im- 
proper use  is  made  of  the  process  of  the  court ;  for  if  it 
appear  to  have  been  resorted  to  for  the  purposes  of  op- 
pression, it  may  afford  ground  for  its  interposition. (^) 
Neither  will  a  court  of  law,  upon  the  application  of  part- 
nership creditors,  give  time  to  the  sheriff  to  make  his 
return  to  the  writ  of  execution,  so  as  to  enable  them  to 
obtain  an  account  in  equity,  whereby  the  specific  interest 
of  the  debtor  on  the  judgment  would  be  ascertained.(r) 
The  proper  and  safest  line  of  conduct  for  the  sheriff,  in 
such  a  case,  to  pursue,  is,  to  put  some  person  in  posses- 
sion of  the  defendant's  share  as  vendee,  leaving  him  and 

the  parties  interested  to  contest  the  matter 
[  *207  ]  in  a  court  of  equity.(s)    If  the  sheriff  be  ^called 

upon  to  discharge  his  duty,  he  is  bound  to 
seize  and  sell  whatever  interest  the  individual  part- 
ner may  have  in  the  joint  property;  if  he  do  not 
possess  any  interest,  or  if,  possessing  an  interest,  it 
has  been  seized  under  a  prior  writ  of  execution,  and 
therefore  is  in  the  custody  of  the  law,(/)  the  sheriff 
must  return  ntdla  bona.  But  the  interest  or  share  of 
the  other  partners  not  being  effected  by  a  writ  of  exe- 
cution executed  against  the  joint  effects  at  the  instance 
of  a  separate  creditor  of  one  partner,  it  follows,  that  if, 
after  a  levy  made  under  that  writ,  writs  of  execution 
should  likewise  be  issued  against  any  of  the  other  part- 
ners, the  sheriff  must  seize  their  shares,  and  if,  instead 
of  doing  so,  he  return  nulla  bona,  such  a  return  will  be 
false,  and  he  will  be  liable  to  an  action  for  making 
it.(?0 

But  notwithstanding  the  rules  by  which  a  court  of  law 
is  fettered  and  bound  down  render  it  incompetent  to  ad- 

(p)  Chapman  v.  Koops,  supra.  (q)  Id.  ibid. 

(r)  Parker  v.  Pistor,  3  Bos.  &  Pul.  288. ;  but  see  the  case  cited  by 
Best  Serjt.,  arg.  (s)  Id.  ibid. 

(/)  1  Show,  169.  (u)  Id.  ibid. 


AGAINST    PARTNERS.  207 

minister  complete  and  substantial  justice  to  all  parties, 
yet  in  cases  of  execution  courts  of  equity  will  interpose 
their  aid,  and  finally  adjust  the  rights  of  the  parties.    In 
adjudicating  such  questions  the  governing  principle  is, 
that  the  equity  of  the  creditor  is  founded  on  the  equity 
of  the  partner,(ij)  and  as  the  partnership  property  has 
been  acquired  by  the  contraction  of  partnership  debts,  it 
ought  first  to  be  applied  in  discharge  of  them,  according 
to  the  maxim,  qui  sentit  commodum,  sentire  debet  et  onus. 
The  whole  of  this  doctrine  seems  to  arise  out  of  the 
very  principle  upon  which  partnership  is  founded,  name- 
ly, probable  profit  and  the  risk  of  loss,  the  advantages 
or  disadvantages  of  which  cannot,  in  common  justice,  be 
confined  to  one  side  only,  but  must  be  reciprocal  through- 
out.    The   separate   creditor   of  one   partner   having, 
therefore,  no  right  against  the  partnership  property  be- 
yond the  separate  interest  of  that  partner,  the  solvent 
partners  may  file  a  bill  in  equity  against  him  to  take  an 
account,  as  a  means  of  ascertaining  what  interest  the  in- 
dividual partner  actually  possesses  in  the  joint  stock, 
and  until  such  account  be  taken,  may  obtain  an  injunc- 
tion restraining  proceedings  under  the  writ.(z^;)     And 
even  after  a  sale  by  the  sheriff,  as  his  vendee  becomes 
tenant  in  common  with  the  solvent  partners  of  the  joint 
effects,  the  latter  may  exhibit  a  bill  and  compel 
him  to  assent  to  the  ordinary  ^equity  attach-  [*208] 
ing  on  partnership  property,  which  is,  that  it  is 
not  to  be  divided  until  the  joint  debts,  and  the  separate 
claims  of  the  partners  themselves,  are  paid  and  discharg- 
ed.(a:)     In  such   a  case,  a  court  of  equity,  diflfering  in 
this  respect  from  a  court  of  law,  has  no  difficulty  in  set- 
tling and  arranging  the  rights  of  the  parties  secundum 
cBC/unm  et  honum ;  and,  considering  the  nature  and  eflfect 
of  the  contract  of  partnership  to  be  that  the  whole  proper- 
ty is  pledged  to  partnership  purposes,  and  amongst  and 
in  preference  to  any  other  purpose,  to  the  payment  of 
the  joint  debts,  and  having  the  means  of  taking  the  com- 
plicated accounts  of  the  partnership,  it  converts  the  joint 

{v)  Campbell  v.  Mullet,  2  Swanst.  570. 

{w)  Taylor  v.  Fields,  4  Ves.  396.     S.  C.  15  Ves.  559,  in  note. 
(x)  Per  Lord  Ahanley,  Chapman  v.  Koops,  3  Bos.  &i  Pul.  289. 

36 


208  LEGAL    REMEDIES 

stock  into  that  state  in  which  the  property  would  be  di- 
visible as  clear  surplus.(i/)  It  concedes  to  the  judgment 
creditor  only  that  quantum  of  interest  which  the  indivi- 
dual partner  himself  could  extract  out  of  the  concerns  of 
the  partnership  after  all  the  accounts  of  the  partnership 
are  taken,  and  the  effects  of  the  partnership  are  reduced 
into  a  dry  mass  of  property,  upon  which  no  person  ex- 
cept the  partners  themselves  have  any  claim.(-2)  The 
party  succeeding  to  the  right  of  the  partner  comes  into 
nothing  more  than  an  interest  in  the  partnership,  which 
cannot  be  tangible,  cannot  be  made  available,  or  be  de- 
livered, but  subject  to  an  account  between  the  partner- 
nership  and  the  partner.  If  the  whole  property  be  due 
to  the  joint  creditors,  they  have  the  preferable  right  to 
it ;  but  if  it  be  not  exhausted  in  satisfying  their  demands, 
and  the  other  partners  have  claims  upon  the  surplus,  in 
consequence  of  having  brought  into  the  partnership  or 
disbursed  more  than  their  proportion,  they  must  be 
placed  on  an  equality,  by  a  reimbursement  of  their  ad- 
vance, before  the  judgment  creditor,  or  the  person  claim- 
ing through  the  sheriff,  can  insist  upon  payment :  for  all 
that  can,  in  such  case,  be  delivered  in  equity,  is  the  in- 
terest which  the  partner  had  in  the  same  state  and  con- 
dition in  which  it  was,  and  subject  to  the  same  claims 
as  existed  against  it  when  the  partner  himself  possessed 
it.(«) 

On  the  subject  of  execution  it  remains  to  be  observed, 

that  the  writ  of  execution  must  correspond  with 
[  *209  ]  the  judgment  by  *which  it  is  warranted,  and  on 

which  it  depends.  As,  on  a  judgment  against  an 
individual,  an  execution  cannot  issue  against  him  and 
another,  so  on  a  joint  judgment  against  several,  a  sepa- 
rate execution  against  one  cannot  be  sustained.(6)  Even 
if  some  of  the  defendants  have  died  since  the  judgment 
was  recovered,  the  execution  must  still  be  taken  out  in 

(i/)  Dutton  V.  Morrison,  17  Ves.  206.  S.  C.  1  Kose,  B.  C.  213; 
see  also  Barker  v.  Goodair,  11  Ves.  85. 

(2)  DuUon  u.  Morrison,  si</?ra, 

(a)  Taylor  v.  Fields,  4  Ves.  ,396.  S.  C.  15  Vesey,  559;  see  also 
Young  V.  Keighly,  15  Vesey,  557. 

{b)  Clarke  v.  Clement,  6  T.  R.  525.  Hob.  59.  Hunt  v.  Pasman,  4 
M.  &  S.  329. 


AGAINST  PARTNERS.  209 

the  joint  names  of  all  those  against  whom  it  was  ob- 
tained.(c)(l)     But  when  it  is  issued  against  all,  it  may- 
be executed  against  all,  or  separately  against  each,  since 
each  is  answerable  for  the  whole  debt,  and  not  for  any 
definite  proportion  of  it.(c?)     And  if  it  be  enforced  against 
an  individual  defendant,  from  whom  actual  satisfaction 
is  obtained,  such  satisfaction  operates  as  a  discharge  of 
the  other  defendants  from  the  claim  of  the  plaintiff.(e) 
The  creditor  is  entitled  only  to  payment,  which,  if  made 
by  one  debtor,  must  necessarily  liberate  the  other  debtors 
from  his  demand,  although,  as  between  the  debtors  them- 
selves, the  consequent  obligation  arises,  of  contributing 
each  his  proportion  towards  the  liquidation  of  the  debt.f/) 
On  the  same  principle  it  is,  that  if  after  one  of  several  joint 
debtors  on  a  judgment  has  been  taken  in  execution  on  a 
capias  ad  saiisfaciendum,  he  escape,  and  the  creditor,  in 
an  action  against  the  sheriff  founded  on  the  escape,  re- 
cover from  him  the  debt  and  damages  due  on  the  judg- 
ment, the  demand  of  the  creditor  is  extinguished;  because, 
as  regards  him,  were  the  judgment  not  vacated,  he  w  ould 
obtain  a  double  satisfaction.(^)    The  law,  therefore,  sub- 
stantially transfers  the  remedy  to  the  sheriff,  who,  by  an 
action,  founded  on  the  recovery  against  himself,  may 
obtain  a  complete  indemnification  against  the  damages 
he  has  been  constrained  to  pay.     But  it  is  not  alone  in 
cases  of  an  actual  pecuniary  satisfaction  received  by  the 
creditor  that  the  debtors  on  a  joint  judgment  are  absolved 
from  their  joint  and  several  responsibility  under  it ;  the 
creditor  himself  may,  by  his  own  acts,  produce  a  perfect 

(c)  Lord  Raym.  244.  S.  C.  1  Salk.  319.  Tidd's  Prac.  (7th  ed.) 
1155. 

{d)  Abbot  V.  Smith,  2  Blackst.  Rep.  947.  Ex  parte  Ruffiii,  6 
Vesey,  119. 

(e)  Hob.  59.  Com.  Dig,  til.  Execution  (H).      (/)  See  ante,  p.  79. 

\g)  Hob.  59. 


(1)  See  Guhr  etal.  v.  Chambers,  8  Serg.  &l  Rawle  Rep.  157.  A 
judment  against  two  partners  entered  by  confession  in  the  singular 
number,  held  to  be  a  judgment  against  both,  the  previous  part  of  the 
order,  and  other  circumstances,  manifesting  that  the  entry  in  the  singu- 
lar was  a  clerical  mistake.     McCoiin  v.  Holmes,  4  Litt.  Rep.  389. 


209  LEGAL    REMEDIES 

exoneration  of  the  debtors  from  liability,  both  separate 
and  joint.  For  instance,  if,  after  a  person  of  a  single 
joint  debtor  has  been  taken  by  virtue  of  a  writ  of  execu- 
tion issued  against  several,  the  creditor,  on  a  compromise 
being  effected,  or  for  any  other  cause,  consent  to  his 

liberation,  he  cannot  afterwards  retake  him,  or 
[  *210  ]  take  any  of  the  *co-debtors;  the  personal  caption 

and  subsequent  voluntary  discharge  of  one  joint 
debtor,  under  final  process,  being  so  far  considered  as  a 
legal  satisfaction  of  the  entire  debt,  as  that  it  cannot  be 
enforced  against  the  other  debtors.(^)  And  where  a 
plaintiff  obtained  a  verdict  in  trespass  against  two  de- 
fendants, and  both  being  arrested  on  a  joint  writ  of 
capias  ad  satisfaciendum  for  the  amount  of  the  daniages, 
one  was  afterwards  discharged  on  giving  a  promissory 
note  to  the  plaintiff,  payable  by  instalments,  it  was  held 
that  this  operated  to  discharge  the  other.(i)(l)  But 
although  such  is  the  legal  consequence  of  a  discharge  of 
one  of  several  joint  debtors,  when  emanating  from  the 
act  of  the  party  or  creditor,  yet  the  same  effect  is  not 
produced,  where  the  liberation  proceeds  from,  and  is  a 
consequence  of  the  act  or  operation  of  the  law.  There- 
fore the  discharge,  under  an  insolvent  debtors'  act,  of 
one  of  two  defendants  taken  on  a  joint  writ,  does  not 
operate  as  a  discharge  of  the  other  defendant,  since  it  is 
not  with  the  actual  consent  of  the  creditor.( ;)     Nor  are 

(h)  Clarke  v.  Clement,  6  T.  R.  526.  5  Cro.  Eliz.  73.  Co.  586. 
See  also  Tanner  v.  Hague,  7  T.  R.  420.  Blackburn  v.  Stupart,  2 
East,  243. 

(i)  Ballam  v.  Price,  2  B.  Moore,  235.  Where  the  obligee  of  a  joint 
bond  after  an  assignment  of  the  estate  of  one  of  the  obligors  under  a 
commission  of  bankruptcy,  recovered  judgment  against  the  other,  and 
look  him  in  execution  by  a  capias  ad  satisfaciendum,  but  consented  to 
his  discharge  on  payment  of  part  of  the  debt;  on  petition  to  the  Lord 
Chancellor  he  was  allowed  to  come  in  as  a  creditor  before  the  assignees 
for  a  moiety  of  the  money  remaining  due  on  the  bond,  for  as  the  exe- 
cution against  the  one  obligor  was  subsequent  to  the  assignment  of  the 
bankrupt's  estate,  the  obligee  had  already  a  vested  interest  in  that  es- 
tate. Ex  parte  Smith,  1  P.  Wms.  237. 
(j)  Nadin  v.  Battie,  5  East,  147. 


(1)  See  Cooper  v.  Bigalow  et  al,  1  Cowen's  Rep.  56. 


AGAINST    PARTNERS.  210 

joint  debtors  exempted  from  their  joint  responsibility,  if 
one  of  them  being  taken  in  execution  escape,  and  the 
creditor,  not  exerting  his  legal  remedy  against  the  sheriff, 
does  not  obtain  from  him  an  equivalent  in  damages  for 
the  debt.(^)  So,  if  one  die  whilst  in  execution  under  a 
joint  judgment,  the  right  of  the  creditor  under  the  judg- 
ment survives  against  the  others.(/)  A  caption  of  one 
defendant  under  a  capias  ad  satisfaciendum  is  no  actual 
satisfaction,  so  as  to  bar  the  plaintiff  from  taking  out 
execution  against  other  persons  liable  to  the  same  debt 
or  damages.(?n)  In  an  action  against  several  defendants, 
a  verdict  was  taken  for  the  plaintiff  for  a  certain  amount 
of  damages,  subject  to  a  point  of  law  reserved  for  the 
opinion  of  the  court ;  and  in  case  that  point  should 
be  determined  in  favour  of  the  plaintiff,  *then  [*211  ] 
subject  to  the  award  of  a  barrister  as  to  the 
amount  of  damages.  The  point  of  law  being  decided  in 
favour  of  the  plaintiff,  the  abitrator  declined  proceeding 
in  the  reference,  having  been  consulted  by  one  of  the 
parties  in  the  cause.  One  of  the  defendants  refused  to 
name  any  other  arbitrator;  and,  under  these  circum- 
stances, the  court  ordered  judgment  and  execution  to 
issue  against  that  defendant  for  the  damages  found  by 
the  jury  unless  he  would  consent  to  refer  the  damages 
to  some  other  arbitrator.(?2) 

If  the  sheriff,  under  an  execution  against  one  of  two 
partners,  seize  and  sell  the  whole  of  the  property,  the 
solvent  partner  may,  it  seems,  either  consider  the  seizure 
and  sale  as  a  tort,  and  maintain  an  action  of  trover 
against  him,  or  he  may  v*^aive  the  tort  and  adopt  the 
sale ;  in  which  case,  he  may  proceed  against  the  sheriff 
as  for  money  had  and  received  to  his  use.(o)  But  if, 
under  such  an  execution,  the  sheriff  neither  seizes  nor 
sells  any  part  of  the  joint  property,  but  falsely  returns 
nulla  bona,  in  an  action  against  him  for  such  return,  the 

{k)  Cro.  Eliz.  479.  555.  573.  5  Co.  86.  Hob.  59. 
(/)  Id.  ibid. 

(m)  Hob.  59. ;  and  see  Brickwood  v.  Annis,  5  Tauut.  614.  S.  C.  1 
■   Marsh.  250. 

(n)  WooUey  v.  Kelly,  1  B.  &  C.  68. 
(o)  Tidd's  Pract.  (7th  ed.)  1024. 


211  EqUITABLE  REMEDIES 

proper  measure  of  damages  seems  to  be  half  the  value 
of  the  whole  goods>.{p) 


SECTION  II. 
Equitable  Remedies  against  Partners. 

Creditors,  or  persons  contracting  with  a  partnership 
firm,  may  likewise,  where  there  is  a  defect  of  remedy  at 
law,  resort  to  a  court  of  equity,  and  call  in  aid  its  inter- 
ference. In  many  instances  more  effectual  relief  is  ad- 
ministered in  equity,  than  the  forms  and  technicalities  of 
the  law  will  allow  it  to  grant.  The  common  law,  for 
example,  though  it  professes  to  adopt  the  lex  mercatoriay 
has  not  adopted  it  throughout,  in  what  relates  to  partner- 
ships in  trade.  It  holds,  indeed,  that  although  partners 
are  in  the  nature  of  joint  tenants,  there  shall  be  no  sur- 
vivorship between  them  in  point  of  interest ;  yet,  with 
regard  to  partnership  contracts,  it  applies  its 
[  *212  ]  own  pecular  rule ;  and  because  they  are  *in  form 
joint,  holds  them  to  produce  only  a  joint  obliga- 
tion, which  consequently  attaches  exclusively  upon  the 
survivors.  By  the  general  mercantile  law,  however,  a 
partnership  contract  is  several  as  well  as  joint;  and 
courts  of  equity,  adopting  to  its  full  extent  that  law  for 
their  guidance,  have  considered  joint  contracts  of  this 
description  as  standing  upon  a  different  footing  from 
ordinary  joint  contracts,  and  have  ascribed  a  several,  as 
well  as  a  joint  operation  to  them.  On  the  ground,  there- 
fore, that  each  partner  is  liable  for  a  partnership  debt,  a 
court  of  equity  not  only  sanctions  the  remedy  which  the 
law  gives  against  the  surviving  partner,  but  will  likewise 
decree  satisfaction  out  of  the  estate  of  a  deceased 
partner.(a) 

To  a  suit  in  equity  instituted  against  partners,  as  in  a 
suit  brought  by  them,  all  the  partners  must  be  made 
parties.  This  is  necessary,  in  compliance  with  the  gene- 

(/))  Tyler  r.  Duke  of  Leeds,  2  Stark.  N.  P.  C.  218. 
(o)  See  post,  where  this  subject  is  more  fully  considered. 


AGAINST    PARTNERS.  212 

ral  rule,  which  requires  that,  to  a  bill  founded  on  a  con- 
tract, all  those  persons  should  be  made  parties  who  are 
parties  to  the  contract.(6)(l)  It  is  also  essential  in 
order  that  the  court  may  be  enabled  to  dispense  com- 
plete justice,  by  deciding  upon  and  settling  the  rights  of 
all  persons  interested.(c)  But  a  strict  observance  of  the 
general  rule  is  not  enforced  where  the  parties  to  be  made 
defendants  are  too  numerous  to  render  it  practicable  to 
prosecute  a  suit,  if  they  were  all  joined  in  it;  and  there- 
fore an  individual  claiming  against  a  numerous  partner- 
ship or  club,  who  is  not  himself  a  partner,  is  at  liberty  to 
file  a  bill  against  a  few  of  the  partners  or  members 
only.(c?)  And  when  one  partner  is  resident  in  a  foreign 
country,  and  consequently  out  of  the  reach  of  the  pro- 
cess of  the  court,  the  suit  may  be  brought  against  the 
partner  who  is  within  its  jurisdiction ;  and  if  the  omis- 
sion be  excused  by  the  bill,  the  defendant  will  be  pre- 
cluded from  objecting  that  his  co-partner  is  not  made  a 
party  ;(e)  and  if  a  decree  be  obtained  against  him,  he  will 
be  compelled  to  satisfy  the  joint  demand.(/)(2) 

(b)  Humphreys  v.  HoUis,  1  Jacob,  75. 

(c)  Lord  Redesdale's  Tr.  on  PI.  133. 

(a)  Baldwin  v.  Lawrence,  2  Sim,  &  Stu,  26.  Weale  v.  West  Mid- 
dlesex Waterworks  Company,  1  Jac.  &  Walk.  358.  Meux  v.  Maltby, 
2  Swanst.  277.  Cockburn  v.  Thompson,  16  Ves.  321.  Weld  v.  Bon- 
ham,  2  Sim.  &  Stu.  91. 

(e)  Weymouth  v.  Boyer,  1  Ves.  jun.  416.  In  Cockburn  v.  Thomp- 
son, 16  Ves.  325,  Lord  Eldon  said,  "  there  are  many  instances  of  jus- 
tice administered  in  this  court,  in  the  absence  of  those,  without  whose 
presence,  as  parties,  if  they  were  within  the  jurisdiction,  it  would  not 
be  administered."  (3) 

(/)  Darwenl  v.  Walton,  2  Atk.  510.  It  is  usual  where  parties  are 
charged  by  the  bill  to  be  out  of  the  jurisdiction  of  the  court  to  name 
them  in  the  prayer  of  process  ;  because,  if  they  come  within  the  juris- 
diction, process  may  issue  against  them  without  amending  the  bill. 
But  the  omission  of  their  names  in  the  prayer  of  process  does  not  ren- 
der the  record  defective.  Lord  Redesdale's  Tr.  on  PI.  134.  Haddock 
V.  Thomlinson,  2  Sim.  &l  Stu.  219. 

(A)  Waggoner  v.  Gray's  Jidm.  2  Hen.  &  Munf.  605.  Bozier  v. 
Eaivards,  3  Litt.  Rep.  67.  See  Hoy^s  heirs  v.  McMurry,  1  Litt.  Rep. 
365. 

(2)  See  Simpson  et  al.  v.  Geddes,  2  Bay's  Rep.  533. 

(3)  The  Court  will  not  bind  all  the  partners  in  a  trading  company, 
as  to  the  construction  of  the  articles  of  co-partnership,  as  to  a  point  of 


213  EQUITABLE  REMEDIES 

[  *213  ]  *So  where  one  of  the  joint  owners  of  a  cargo 
'  deposited  part  of  the  cargo  with  a  factor  to  sell, 

and  hold  a  moiety  of  the  proceeds  for  his  separate  cre- 
ditor, it  was  held  that  the  latter,  to  a  bill  filed  for  an 
account  of  the  proceeds,  need  not  make  the  other  joint 
owner  a  party.(^)  And  where  a  bill  was  filed  against 
two  partners,  of  whom  one  was  abroad,  and  the  partner 
in  this  country  admitted  that  he  was  the  agent  of  his  co- 
partner, it  was  ordered,  upon  motion,  that  service  of  the 
subpoena  upon  the  partner  in  England,  or  upon  his  clerk 
in  court,  should  be  good  service  upon  both.(/i)  (1)  The 
relief  to  be  obtained  against  partners  through  the  me- 
dium of  a  bill  in  equity,  corresponds  in  almost  every 
respect  with  that  which  is  granted  against  an  individual 
defendant.  The  number  of  the  parties,  or  the  fact  of 
their  being  united  as  partners,  does  not  necessarily  make 
any  difference  or  variation  in  the  equity  administered. 
That  remains  immutable,  and  is  as  rigorously  exacted 
from  those  who  have  formed  themselves  into  an  asso- 
ciation, as  it  would  be  were  they  the  objects  of  suit  in 
their  separate  capacities.  It  is  not  the  parties,  but  the 
right,  which  is  regarded.  It  has  been  holden  that  a 
court  of  equity  has  jurisdiction  against  a  corporation  on 
a  bill  for  an  account  of  the  profits  in  the  nature  of  a 
partnership,  and  such  a  bill  will  be  entertained,  not  only 
at  the  instance  of  a  member,  but  of  a  stranger.(z)  The 
equitable  jurisdiction  by  injunction,  where  the  effect  will 

(g-)  Weymouth  v.  Boyer,  ante. 

{h)  Carrington  v.  Cantillon,  Bunb.  107.  S.  P.  Coles  v.  Gurney,  1 
Madd.  187.     And  see  Ex  parte  Peyton,  Buck,  200. 

(i)  Adley  v.  Whitstable  Company,  17  Ves.  315.  S.  C.  1  Meriv. 
107.  See  also  Attorney-general  v.  Governors  of  Foundling  Hospital 
2  Ves.  jun.  42. 


general  interest,  in  a  suit  by  some  of  the  partners  against  a  committee 
for  the  management  of  the  commercial  concerns,  not  otherwise  autho- 
rized to  represent  the  partnership.  Baldwin  v.  Lawrence,  2  Sim.  & 
Stu.  26. 

(1)  So  the  answer  of  one  joint  partner  in  the  name  of  both  is  suffi- 
cient, provided  the  complainant  files  a  general  replication,  and  takes  no 
steps  to  compel  an  answer  from  the  other  partner.  Freelands  v. 
Royal  et  at.  2  Hen.  &  Munf.  575. 


AGAINST  PARTNERS.  213 

be  to  stop  a  large  trading  concern,  is  exercised  with 
great  caution,  for  an  injunction  will  not  be  granted  ex 
parte^  but  on  notice,  giving  the  defendants  an  oppor- 
tunity to  oppose  it  on  affidavit.(ir) 


*SECT10N  til.  [  ^214  ] 

Proceedings  against  Partners  at  the  Suit  of  the  Crown. 

Besides  the  liabilities  which  partners  may  contract 
with  subjects,  the  partnership  may  sometimes  be  involved 
in  transactions  in  which  the  crown  is  interested.  This 
not  unfrequently  arises  in  cases  where  contraband  or 
uncustomed  goods  are  found  in  their  joint  possession,  or 
where  one  of  the  partners  engages  in  smuggling,  with  the 
consent  or  privity  of  the  others,  and  the  Attorney-Ge- 
neral, on  the  behalf  of  the  crown,  seeks  to  enforce  pay- 
ment of  the  penalties  imposed  by  the  revenue  laws. 
There,  it  seems,  the  partners  are  either  jointly  or  sepa- 
rately hable,  the  whole  of  the  penalties  being  recoverable 
from  them,  either  in  their  joint  or  their  individual  capa- 
cities, at  the  election  of  the  crown.  This  doctrine  we 
find  laid  down  by  Lord  Chief  Baron  Pe7igelly:(a)  "If 
one  of  several  partners  is  concerned  in  smuggling  on 
account  of  the  co-partnership  trade,  the  crown  may  come 
against  any  one  of  the  partners  for  the  whole  penalty,  it 
being  in  the  nature  of  a  tort,  and  not  of  a  contract;  just 
as  in  cases  of  a  tort,  a  subject  might  come  upon  any  one 
concerned  in  the  tort."  So,  in  a  case(6)  in  which  wines 
were  imported  and  entered  at  the  custom-house,  by  one 
party  for  himself  and  the  firm,  and,  by  a  wrong  entry  in 
the  books,  the  crown  was  defrauded  of  a  part  of  the 
duties,  it  was  held,  on  an  information  being  brought  for 
the  deficiency,  that  though  the  importation  and  entry 
were  made  by  a  single  partner,  yet  all  the  persons  who 
composed  the  firm,  at  the  time  of  the  importation,  were 
liable  for  the  whole  to  the  crown.     Nor  is  it  essential, 

{z)  Crowder  v.  Tinkler,  19  Ves.  617. 
{aS  Attorney-General  v.  Burges,  Bumb.  223. 
\b)  Attorney-General  v.  Stanny forth,  Bumb.  97. 
37 


214  PROCEEDINGS  AGAINST  PARTNERS 

in  order  to  subject  partners  jointly  to  penalties,  that  the 
goods  in  respect  of  which  they  are  incurred  should  ac- 
tually come  to  their  joint  manual  possession ;  if  they  are 
in  their  power,  or  in  the  custody  of  their  agent,  or  of 
any  person  by  their  direction,  it  is  sufficient. (c)  And, 
if  one  partner  is  guilty  of  aiding  and  assisting,  or  is 

otherwise  concerned  in  unshipping,  or  in  further- 
[*215]  ing  the  importation  of  prohibited  and  *uncus- 

tomed  goods,  he  is  liable  to  the  penalty,  not  only 
for  what  he,  but  any  of  the  others  may,  at  the  time, 
smuggle.(d')  But  partners  must  all  be  participes  cri- 
minis ;  they  must  be  parties  to  the  act  of  illicit  impor- 
tation, or  cognizant  of  the  fact  of  the  goods  run  being 
prohibited  and  uncustomed,  or  the  penalties  will  not 
jointly  attach  upon  them.  Thus,  if  two  persons  join 
stock  together,  and  buy  goods  on  their  joint  account, 
and  one  of  them  only  is  privy  to  the  fact  of  the  goods 
purchased  being  run  and  uncustomed,  he  alone  will  be 
liable  to  the  penalties  imposed  in  respect  of  the  whole 
quantity,  if  no  actual  severance  of  the  goods  purchased 
take  place,  and  no  part  of  them  come  into  the  possession 
of  the  other.(e)  And  where  a  joint  purchase  of  goods  is 
made,  for  which  the  purchasers  know  the  duties  imposed 
have  not  been  paid,  and,  immediately  after  the  purchase, 
a  division  of  the  articles  takes  place,  each  person  is  only 
liable  for  the  penalties  incurred  in  respect  of  his  share : 
for,  although  joint  tenants  are  seised  or  possessed  per 
my  et  per  tout,  that  is,  they  are  so  far  possessed  of  the 
whole,  that  none  can  say,  till  partition  made,  that  this 
or  that  part  is  not  in  his  possession,  yet  they,  in  right 
and  reality,  are  possessed  of  no  more  than  their  proper 
share  or  purparty.  As,  therefore,  they  give  or  dispose 
of  no  more,  so  neither  can  they  forfeit  any  more.(/) 
The  penalty  incurred  by  each  is  to  be  measured  and  re- 
gulated by  what  comes  to  his  possession ;  but  that  must 
be  meant  of  what  really  and  truly  comes  into  his  posses- 
sion, and  not  what  notionally  and  virtually  only  can  be 
said  to  be  in  his  possession.(^)     And,  on  the  same 

(c)  Attorney-General  v.  Burges,  supra. 

{d)  Rexr.  Manning,  Com.  Rep.  616.     (c)  Id.  ibid. 

(/)  Co.  Litt.  186.  a.  [g)  Rex.  v.  Manning,  supra. 


AT  THE  SUIT  OF  THE  CROWN.  215 

principle,  that  each  is  culpable  for  what  he  receives,  or 
what  comes  to  his  hands,  it  seems,  that  a  mere  tem- 
porary, but  exclusive  custody  of  uncustomed  goods,  with 
a  knowledge  that  they  are  of  that  description,  is  suffi- 
cient to  render  the  person  having  that  custody  res- 
ponsible for  the  whole  penalties  imposed.  Thus,  if  two 
persons,  knowing  that  the  duties  are  not  paid,  buy  tea 
on  the  joint  account  of  themselves  and  a  third  person, 
and  all  the  tea  is  intrusted  to  one  of  the  two  persons, 
whilst  the  other  search  for  a  purchaser,  to  whom  it  is 
sold,  and  the  proceeds  are  afterwards  shared  in  thirds, 
an  information  for  the  whole  penalty  may  be  maintained 
against  the  person  with  whom  the  tea  was  so  intrust- 
ed.(A) 

We  have  seen,  that  in  a  case  of  a  judgment  and  exe- 
cution against  an  individual  partner  for  his 
separate  debt,  the  joint  *creditors  must  be  satis-  [  *216  ] 
fied  before  the  separate  creditor  can  render  his 
execution  available  against  his  debtor's  interest  in  the 
joint  estate ;  and  the  same  equity  applies  where  an  indi- 
vidual partner  is  the  object  of  an  extent  at  the  suit  of 
the  crown,  because  although,  in  ordinary  cases,  the 
crown  is  entitled  to  a  preference,  yet  in  such  an  instance 
that  right  of  preference  operates  only  upon  the  interest 
which  the  partner  himself  possesses.  If,  therefore,  an 
extent  against  a  single  partner,  and  a  commission  of 
bankruptcy  against  the  firm,  are  contemporaneous  in 
their  existence,  notwithstanding  the  latter  issue  subse- 
quently to  the  former,  the  joint  creditors  are  entitled  to 
a  priority  in  respect  of  payment ;  and,  if  the  assets  are 
inadequate  to  the  discharge  of  their  demands,  the  crown 
is  not  entitled  to  any  satisfaction  from  the  partnership 
efrects.(i)(l)     But  where  partnership  property  is  seized 

{h)  Rex.  V.  Manning,  supra. 

{i)  Rex  V.  Saunderson,  1  Wightw.  50. 


(1)  Nor  does  the  priority  of  The  United  States,  extend  to  take  the 
property  of  a  partner  from  partnership  effects,  to  pay  a  separate  debt, 
due  by  sucli  a  partner  to  the  United  States,  when  the  partnership 
effects  are  not  sufficient  to  satisfy  the  creditors  of  the  copartnership. 
The  U.  States  v.  Hack  et  al  8  Peters'  Sup.  Ct.  Rep.  271. 


216  PROCEEDINGS  AGAINST  PARTNERS 

under  an  extent  against  one  partner,  who,  on  taking  the 
accounts,  proves  to  be  indebted  to  the  firm,  the  court 
will  not,  on  motion,  grant  an  amoveas  manus,  until  it  has 
been  referred  to  the  remembrancer. (j) 

Besides,  in  the  instances  which  have  been  stated,  the 
rights  of  the  crown  may,  in  other  cases,  conflict  with 
those  of  partners.  Upon  the  outlawry  of  one  partner, 
or  his  attainder  for  treason  or  felony,  all  the  partnership 
effects  become  vested  in  the  crown.  The  share  of  the 
party  outlawed  or  attainted  is  in  the  first  place  forfeited; 
whereby,  if  the  king  were  capable  of  being  so,  he  would 
become  joint  tenant,  or  tenant  in  common  of  the  part- 
nership effects  with  the  other  partner ;  but  as  this  would 
be  inconsistent  with  the  dignity  of  the  monarch,  he  is 
strictly  entitled  to  the  whole.  So,  if  the  interest  of  one 
partner  vest  by  contract  in  the  king,  he  will,  as  it  seems, 
be  entitled  to  the  entirety  of  the  undivided  interests  of 
all  the  partners.  The  law  upon  this  subject  has  been 
ably  and  elegantly  explained  by  Mr.  Justice  Blackstone, 
in  his  Commentaries.(A:)  He  says,  "  In  the  several 
methods  of  acquiring  property  by  prerogative,  there  is 
also  this  peculiar  quality,  that  the  king  cannot  have  a 
joint  property  with  any  person  in  one  entire  chattel,  or 
such  a  one  is  not  capable  of  division  or  separation;  but 
where  the  titles  of  the  king  and  a  subject  concur,  the  king 
shall  have  the  whole :  in  like  manner,  as  the  king  can- 
not, either  by  grant  or  contract,  become  a  joint 
[  *217  ]  *tenant  of  a  chattel  real  with  another  person ; 
but  by  such  grant  or  contract  shall  become  en- 
titled to  the  whole  in  severalty.  Thus,  if  a  horse  be 
given  to  the  king  and  a  private  person,  the  king  shall 
have  the  sole  property :  if  a  bond  be  made  to  the  king 
and  a  subject,  the  king  shall  have  the  whole  penalty ; 
the  debt  or  duty  being  one  single  chattel ;(/)  and  so,  if 
two  persons  have  the  property  of  a  horse  between  them, 
or  have  a  joint  debt  owing  them  on  bond,  and  one  of 
them  assigns  his  part  to  the  king,  or  is  attainted,  where- 

(j)  Rex  V.  Rock,  2  Price,  198. 
{k)  Vol  ii..p.  409. 
(/)  Fitzh.'Abr.  t.  Dette,  38.  Plowd.  243. 


AT  THE  SUIT  OF  THE  CROWN.  217 

by  his  moiety  is  forfeited  to  the  crown ;  the  king  shall 
have  the  entire  horse,  and  entire  debt.(wi)  For,  as  it 
is  not  consistent  with  the  dignity  of  the  crown  to  be 
partner  with  a  subject,  so  neither  does  the  king  ever  lose 
his  right  in  any  instance;  but,  where  they  interfere,  his  is 
always  preferred  to  that  of  another  person  :(/z)  from 
which  two  principles  it  is  a  necessary  consequence,  that 
the  innocent,  though  unfortunate  partner  must  lose  his 
share  in  both  the  debt  and  the  horse,  or  in  any  other 
chattel  in  the  same  circumstances."  One  good  effect  of 
this  doctrine,  with  regard  to  partnership,  is,  that  it  may 
render  a  man  cautious  as  to  the  persons  with  whom  he 
forms  this  relation,  and  that  it  makes  it  his  interest  to 
strive  to  preserve  them  in  the  path  of  loyalty  and  virtue. 
Besides,  although  such  are  the  strict  rights  of  the  crown, 
in  the  mild  spirit  of  modern  times,  they  are  not  likely 
ever  to  be  enforced  either  against  creditors  or  deserving 
partners. 


CHAPTER   V.  [*218] 

SECTION  I. 

The  Causes  of  the  Dissolution  of  a  Partnership. 

In  the  preceding  chapters  our  object  has  been  to  ascer- 
tain and  define  what  are  the  consequences  legally  result- 
ing from  the  formation  of  the  contract  of  partnership. 
These  we  have  endeavoured  to  explain,  both  as  they 
regard  the  rights  of  partners  themselves,  and  as  they 
relate  to  the  responsibilities  which,  as  a  body,  they  may 
incur  to  third  persons.  It  is  now  to  be  considered  what 
are  the  modes  and  causes  by  which  a  partnership,  when 
once  constituted,  may  be  and  is  dissolved.     Where  the 

(m)  Cro.  Eliz.  263.     Plowd.  323.     Finch  Law,  278.  10  Mod.  245. 
(n)  Co.  Litt.  30. 


218  THE    CAUSES    OF    THE    DISSOLUTION 

partnership  is  formed  for  a  single  dealing  or  transaction, 
it  follows  that  it  is  at  an  end  so  soon  as  the  dealing  or 
transaction  in  which  the  partners  jointly  engage  is  com- 
pleted.(a)  But  where  a  general  partnership  is  formed, 
either  for  a  definite  or  an  indefinite  period  of  time,  the 
causes  which  may  operate  a  destruction  of  it  are  various. 
In  the  case  of  a  partnership  limited  as  to  duration,  it 
may,  before  the  prescribed  period  of  its  termination  ar- 
rives, be  dissolved,  either  by  the  death,  the  confirmed 
insanity,  the  bankruptcy  of  all  or  one  of  the  partners,  or 
it  may  endure  for  the  stipulated  period,  and  expire  with 
the  effluxion  of  time ;  but  where  the  partnership  is  un- 
limited, as  to  its  existence,  although  in  the  instances  of 
death  or  bankruptcy  it  is  determined,  yet,  if  those  acci- 
dents do  not  intervene,  any  partner  may  withdraw  him- 
self from  it  whenever  he  thinks  proper.  In  this  respect 
the  law  of  England  adopts  the  rule  of  the  civil  law : 
Tamdiu  societas  durat.  guamdiu  consensus  partium  integer 
per  sever  at. Q})  Besides  the  causes  we  have  stated  as 
operating  a  dissolution,  a  partnership,  limited  as  to  du- 
ration, may,  before  the  expiration  of  the  time  agreed 
upon  for  its  continuance,  be  dissolved  by  the  decree  of 
a  court  of  equity,  where  the  conduct  of  some  or  all  of 
the  partners  has  been  such  as  to  render  it  impossible 
to  carry  on  the  trade  or  undertaking  on  the 
[  *219  ]  *terms  stipulated.  We  will  now  consider  the 
causes  of  dissolution  under  three  general  heads : 
first,  the  act  of  God  ;  secondly,  the  act  of  the  party ;  and 
thirdly,  the  act  or  operation  of  law. 

A  dissolution  occasioned  by  the  act  of  God  may  be 
subdivided  into  two  branches :  first,  a  dissolution  which 
is  necessarily  effected  by  death;  and,  secondly,  a  disso- 
lution which  may  be  the  result  of  insanity.  By  the  death 
of  one  of  the  partners  the  contract  of  partnership  is  ipso 
facto  dissolved.(c)(l)     And  even  where  any  number  of 

a)  See  Inst.  lib.  3.  t.  20.  s.  6.  (6)  Cod.  lib.  4.  t.  37.  1.  5. 

c)  Vulliamy  v.  Noble,  3  Meriv.  614. 


(I)   Gratz  V.  Bayard,  11  Serg.  &;  Rawle,  46.  Scholefield  v.Eichel- 
berger,  7  Peters'  S.  C.  Rep.  586. 


OF  A  PARTNERSHIP.  219 

persons,  exceeding  two,  are  united  as  partners,  the  death 
of  on6  of  them  operates  a  dissolution,  unless  provision 
is  expressly  made  to  the  contrary ;  and  the  accounts  of 
that  partnership  are  taken  down  to  the  time  of  the  death 
of  the  partner.(c?)  The  inducements  to  form  such  a 
contract  consist  chiefly  in  the  personal  character  and 
qualifications  of  the  party,  and  his  representative  or 
legatee  may  be  in  all  respects  a  contrast  to  him.  Cases 
might  easily  be  put  in  which  considerable  inconvenience 
and  hardship  may  arise  from  the  application  of  this  rule, 
but  any  relaxation  of  it  would  produce  much  greater  and 
more  frequent  grievances.  It  has  been  objected  to  the 
doctrine,  that  death  ends  a  partnership,  that  it  is  un- 
reasonable; but  considering  what  persons  might  be  in- 
troduced into  a  firm,  unless  it  worked  a  dissolution, 
there  is  strong  reason  for  saying  that  its  eflfect  should  be 
such  as  the  law  ascribes  to  it.(c)  The  contract  of 
partnership  being  founded  on  a  delectus  personcz,  it  w  ould 
be  destructive  and  subversive  of  the  very  foundation 
of  such  a  contract  w^ere  the  surviving  partner  bound 
and  compellable  to  receive  into  the  partnership,  at  all 
hazards,  the  executor  or  administrator  of  the  deceased, 
his  next  of  kin,  or  possibly  a  creditor  taking  administra- 
tion, or  whoever  claimed  by  representation  or  assign- 
ment from  his  representative.(/)  The  reasoning  on 
which  this  doctrine  rests  has  received  a  fuller  illustra- 
tion from  the  civilians  than  from  any  authorities 
in  our  *domestic  jurisprudence.  According  to  [  *220  ] 
the  Roman  law,  a  partnership  was  dissolved  by 
the  death  of  either  of  the  partners ;  and  where  the  num- 
bers of  partners  exceeded  two,  the  death  of  one  eflfected 
a  dissolution  among  the  survivors.  Solvitur  adhic  soci- 
ctns  etiam  mortc  socii,  quia  qui  socictatem  coiitrahit,  ccrtam 
personam  sibi  elegit ;  sed  et  si  consensu  plurium  societas 

(d)  Per  Lord  Eldon,  Kinder  v.  Taylor,  M.  S.  S.  Gillespie  v. 
Hamilton,  3  Madd.  254.  A.  provision  in  partnership  articles  that,  upon 
the  decease  of  one,  the  surviving  partners  shall  take  his  share  at  a 
valuation,  would,  it  seems,  be  construed  as  an  implied  agreement,  that 
a  partnership  should  subsist  among  the  survivors.  Wrexham  v.  Hudle- 
ston,  1  Swanst.  514.  n. 

(e)  Per  Lord  Eldon,  Crawshay  v.  Maule,  1  Swanst.  509. 
(/)  Id.  Idid.     S.  C.  1  J.  Wils.  181. 


220  THE   CAUSES   OF   THE  DISSOLUTION 

contracta  sit,  morte  unius  socii  solvitur,  etsi  plures  super- 
sint ;  ?iisi  in  coeunda  societate  cditer  convener  it. (g^  So 
rigidly  was  this  doctrine  enforced,  that  a  stipulation  for 
admitting  the  heir  of  the  deceased  into  the  partnership 
was  declared  void.  Nemo  potest  societatem  hcBredi  siio 
sic  parare,  tit  ipse  hcBres  socius  sit,(Ji)  Adeo  morte  socii 
solvitur  societas,  ut  nee  ah  initio  pacisci  possimus,  ut  hceres 
succedat  societati.(i)  But  the  law  of  England  imposes 
no  such  restraint;  it  merely  declares  that,  in  the  absence 
of  express  stipulation  to  the  contrary,  a  partnership  is 
dissolved  by  the  death  of  either  or  any  of  the  partners, 
the  contract  not  subsisting  for  the  benefit  of  representa- 
tives.(A;)  Partners  are  not  incapacitated  from  securing 
to  their  families  respectively,  or  from  transmitting  to 
their  personal  representatives,  the  interests  they  several- 
ly possess  in  the  business  in  which  they  have  engaged; 
but  such  a  transmission  of  interest  must  be  made  the 
subject  matter  of  positive  provision  and  agreement 
amongst  the  partners  themselves.  The  right  of  each 
partner,  by  express  stipulation  inter  se,  to  secure  a  devo- 
lution of  his  interest  in  the  trade  upon  others  at  his 
death,  is  evidenced  by  a  modern  case.(/)(l)  There  a 
partnership  was  formed  for  ninety-nine  years,  upon  an 
agreement  that,  on  the  death  of  any  of  the  partners,  his 
share  should  go  and  of  right  belong  to  his  widow  during 
her  life,  as  a  provision  for  her  support,  and  also  to  enable  j 

her  to  educate  and  promote  her  children;  and,  that  after  | 

{g)  Inst.  lib.  3.  t.  26.  s.  5.  Pothier  has  thus  explained  the  reason 
why  death  operates  a  dissolution.  "  La  raison  est  que  les  qualites 
personnelles  de  chacun  des  associes  entrent  en  consideration  dans  le 
contrat  de  societe  ;  je  ne  dois  done  pas  etre  oblige  lorsque  Vun  de  mes 
associes  est  mart,  a  demeurer  en  societe  avec  les  aittres,  parce  quHl  se 
petit  faire  que  ce  ne  soit  que  par  la  consideration  des  qualites  person- 
nelles de  celui  qui  est  mort,  que  fai  voidu  contracter  la  societe.''^ 
Pothier  Traite  du  contrat  de  Societe,  c.  8.  s,  3.  p.  141. 

(/t)  Dig.  lib.  17.  t.  2.  1.  35.  {i)  Dig.  lib.  17.  t.  2.  1.  59. 

(/c)  Pearce  v.  Chamberlain,  2  Ves,  sen.  33.  Godfrey  v.  Browning, 
lb.  34. 

(/)  Balmain  v.  Shore,  9  Ves.  500. 


(1)   Gratz  V.  Bayard,  11  Serg.  &  Rawle,  46.  Warner  v.  Cunning- 
ham, 3  Dew's  Rep.  76. 


OF  A  partnership'.  220 

her  decease,  her  share  in  the  joint  trade  should  go 
and  of  right  belong  and  appertain  unto,  and  be  equal- 
ly divided  among  her  children,  share  and  share 
*alike;  and  although,  under  the  circumstances  [*221] 
of  the  case,  it  was  held  that  the  child  of  a  part- 
ner did  not  take  a  vested  interest  in  the  parent's  share 
during  the  life  of  the  parent,  yet  the  legality  of  such  a 
provision  was  not  questioned  or  disputed.  But,  without 
the  express  assent  of  his  co-partner,  one  partner  cannot 
nominate  a  person  to  continue  the  trade  after  his 
death ;(/)  (1)  although,  if  the  surviving  partner  himself 
claims  any  benefit  under  the  will,  he  cannot,  without  re- 
nouncing that  benefit,  refuse  to  admit  a  legatee  ;(m)  nor, 
because  there  is  a  stipulation  that  upon  the  death  of  one 
particular  partner  of  two,  the  business  shall  be  carried 
on  by  his  representatives,  does  it  follow  that  such  a 
provision  extends  to  admit  into  the  partnership  the  re- 
presentatives of  the  other  partner  in  the  event  of  his 
previous  demise.(/i)  Although  a  partnership  is  entered 
into  for  a  term  of  years,  it  is  previously  dissolved  by  the 
death  of  either  of  the  partners,  unless  there  are  express 
stipulations  to  the  contrary.(o)  (2)  Where  it  is  stipulated 
by  the  articles  that,  upon  the  death  of  one,  he  shall  be 
succeeded  by  some  one  he  shall  appoint,  or  by  his  exec- 
utors, if,  the  person  appointed  shall  not  think  proper  to 
come  into  his  place  on  the  terms  of  the  partnership,  the 
death  puts  an  end  to  the  concern  from  the  time  of  the 
decease  of  the  partner  making  the  appointment,  and  not 
upon  a  dissolution  wrought  by  exclusion  of  the  appointee, 

(Z)  Godfrey  v.  Browning,  ante. 

(m)  Crawshay  v.  Maule,  1  Swanst.  509. 

n)  Pearce  v.  Chamberlain,  ante. 

o)  Gillespie  v.  Hamilton,  3  Mad.  251. 


(1)  Schofieldx.  Eichelberger,  7  Peters'  S.  C.  Rep.  586.  Nor  can 
one  partner,  by  selling  out  a  portion  of  his  interest,  or  by  any  other 
means,  introduce  a  third  person  as  partner  into  the  concern.  Murray 
V.  Bogert  et  al  14  Johns.  Rep.  318.  Kingman  v.  Spurr,  7  Pick. 
Rep.  235.  And  Chancellor  Kent  has  deemed  this  principle  to  be  ap- 
plicable to  the  case  of  a  feme  sole  partner,  who  by  marrying  dissolves 
the  partnership.  3  Kent's  Comm.  55,  2d  Edit.  Bray  v.  Fromont  et 
al  Mad.  &  Geld.  Rep.  5. 

(2)  Per  Curiam,  7  Peters'  S.  C.  Rep.  594. 

38 


221  THE    CAUSES    OF    THE    DISSOLUTION 

for  he  never  became  a  partner.(^)  It  is  not  necessary 
*to  give  notice  of  a  dissolution  wrought  by  death  in  order 
to  Tree  the  estate  of  the  deceased  from  future  liabiHty  5(9) 
and  on  this  ground  a  court  of  equity  M'ill  not  restrain 
the  surviving  partners  from  using  the  name  of  a  deceased 
partner  in  the  firm  of  the  trade.(r) 

With  respect  to  insanity^  it  seems  clear  that  it  does 
not,  like  death,  per  se  work  a  dissolution  of  a  partner- 
ship ;(s)  and  the  effect  of  the  insanity  of  one  partner;  as 
a  ground  for  a  court  of  equity  to  decree  a  dissolution,  is 
not  yet  settled  by   decision.     It  appears  principally  a 

question  of  circumstances,  to  be  decided  by  refe- 
[  *222  ]  rence  to  the  particular  character  of  the  *disease, 

as  permanent  or  temporary,  the  terms  of  the 
contract  and  the  nature  of  the  undertaking,  as  imposing 
on  the  lunatic  an  obligation  of  active  interference,  for 
the  performance  of  which  he  is  disqualified,  or  reserving 
to  him  a  right  of  inspection,  by  the  suspension  of  which 
the  safety  of  his  estate  may  be  hazarded.  In  such  cases 
the  jurisdiction  of  a  court  of  equity  is  most  diflicult  and 
delicate,  and  to  be  exercised  with  great  caution.(/) 
Where,  as  far  as  human  testimony  can  establish,  the 
lunacy  of  the  partner  is  incurable,  and  he  has  by  the 
articles  contracted  to  contribute  his  skill  and  industry  in 
carrying  on  the  trade,  his  lunacy  furnishes  good  ground 
to  a  court  of  equity  to  decree  a  dissolution ;  because,  as 
on  the  one  hand,  it  would  be  a  great  hardship  upon  a 
person  so  disordered,  if  his  property  were  continued  in 
a  business  which  he  could  not  control  or  inspect,  and 
were  thereby  subjected  to  the  consequences  of  the  pos- 
sible imprudence  of  another ;  so,  on  the  other  hand,  it 
would  be  difficult  to  hold  the  co-partner  to  his  contract, 
when  it  was  perfectly  manifest  that  the  other  could  not 
execute  that  for  which  he  had  engaged.(w)     But,  as  the 

ip)  Kershaw  v.  Matthews,  2  Russ.  62. 
\q)  VuUiamy  v.  Noble,  3  Meriv.  614. 
(r)  Webster  v.  Webster,  3  Swanst.  490.  n. 
(s)  Waters  v.  Taylor,  2  Ves.  &  Bea.  303. 
{t)    Per  Lord  Eldon,  Waters  v.  Taylor,  2  Ves  &  Bea.  303. 
{u)  Id.  ibid.     Sayer  v.  Bennett,  1  Cox's  Ca.  107.     S.  C.   1  Mont, 
on  Partn.  notes  p.  16. 


OF  A  PARTNERSHIP.  222 

duration  of  the  disorder  may  be  protracted  or  circum- 
scribed, and  the  degree  may  admit  of  variety,  it  is  im- 
possible speculatively  to  lay  down  any  general  rule  on 
the  subject;  since  such  a  rule  in  its  application,  must 
vary  according  as  the  malady  is  either  confirmed  insanity, 
or  mere  temporary  illness,  or  dejection  of  mind,(z;)  and 
according  as  the  prospect  of  recovery  is  speedy  or  re- 
mote. Each  case  must  be  governed  and  decided  by  its 
own  peculiar  circumstances.  However,  whatever  may  be 
the  nature  of  the  disorder,  one  partner  cannot,  in  con- 
sequence of  such  an  affliction,  put  an  end  to  the  part- 
nership by  his  own  act ;  that  object  can  only  be  attained 
through  the  medium  of  the  decree  of  a  court  of  equi- 
ty .(i^)  (1)  In  one  case  the  court  ordered  it  to  be  referred 
to  the  master  to  inquire  and  state  whether  the  defendant 
(the  alleged  lunatic)  was  in  such  a  state  of  mind  as  to  be 
capable  of  conducting  the  partnership  business  according 
to  the  terms  of  the  articles  of  co-partnership.(^) 

*Where  no  term  is  expressly  limited  for  the  [  "223  ] 
duration  of  a  partnership  contract,  and  there 
is  nothing  in  the  contract  itself  to  fix  its  existence  to  any 
particular  period,  it  is  dissoluble  at  the  will  of  either  par- 
ty.{y)  (2)  Admitting  the  serious  inconveniences  which 
sometimes  ensue  the  application  of  this  principle,  it  is 

(u)  Liardet  v.  Adams,  Mont,  on  Part.  90.  n.  ii). 

{w)  Waters  v.  Taylor,  supra.  Sayer  v.  Bennet,  supra.  See  also 
Wrexham  v.  Hudleston,  1  Swanst.  514.  n.  S.  C.  cited  2  Ves.  sen.  34,  35. 

{x)  Sayer  v.  Bennet,  supra. 

(y)  Peacock  v.  Peacock,  16  Ves.  50.  Crawshay  v.  Maule,  1 
Swanst.  508.     S.  C.  1  J.  Wils.  181. 


(1)  3  Kent's  Comm.  58,  2d  Edit.  Messrs.  TVelfs  and  Emmet  in 
the  argument  of  Griswold  v.  TVaddington,  15  Johns.  Rep.  57,  stale 
the  law  to  be,  that  insanity  operates  as  a  dissolution  of  a  partnership, 
and  the  Court  recognise  it  expressly;  but  the  true  rule  is  stated  by  Mr. 
Colden,  (page  80,)  that  "  the  mere  fact  of  lunacy  does  not  put  an  end 
to  the  partnership."     Jones  v.  Noy,  2  Milne  &  Keen,  125. 

(2)  Skinner  v.  Dayton,  19  Johns.  Rep.  538.  11  Serg.  &  Rawle, 
46.  It  is  a  question  for  the  jury,  whether  facts  and  circumstances 
proved  show  a  partnership  to  have  been  dissolved.  Eocche  v.  Fen- 
dergrast,  3  Harr.  &  Johns.  33. 


223  THF  CAUSES  OF  THE  DISSOLUTION 

necessary  likewise  to  contemplate  the  formidable  evils 
which  would  attend  an  opposite  doctrine.  When  per- 
sons enter  into  a  partnership  without  saying  how  long  it 
shall  endure,  they  are  understood  to  take  that  course,  in 
the  expectation  that  circumstances  may  arise  in  which  a 
dissolution  will  be  the  only  means  of  saving  them  from 
ruin.  To  require,  therefore,  a  prospective  notice  might 
contravene  the  intention  of  the  parties,  at  the  same  time 
that  its  reasonableness  w^ould  afford  a  constant  subject 
of  dispute.  On  the  one  hand,  it  may  be  extremely  dis- 
advantageous to  parties  to  say,  that  a  partnership  shall 
be  dissolved  on  a  given  day;  on  the  other,  it  must  be 
extremely  difficult,  if  not  impossible,  for  a  court  of  equity, 
by  a  general  rule,  to  ascertain  what  is  reasonable  notice ; 
and  the  question,  whether  the  particular  notice  was  rea- 
sonable or  convenient,  would  be  matter  of  discussion  in 
almost  every  instance  of  a  disputed  dissolution.  Con- 
siderations of  that  sort  led  to  the  adoption  of  the  rule, 
that  in  the  case  of  a  partnership  subsisting  without  arti- 
cles, and  for  an  indefinite  period,  any  partner  may,  at  a 
moment's  notice,  terminate  the  partnership.  But,  ac- 
cording to  the  principles  on  which  the  dissolution' must 
take  place,  a  partner  can  very  seldom,  if  ever,  have  an 
interest  to  give  notice  of  dissolution  at  a  period  disad- 
vantageous to  the  general  interest  of  the  concern ;  as 
where  the  articles  do  not  prescribe  the  terms,  the  law 
ascertains  what  shall  be  the  consequence :  viz.  that  the 
whole  of  the  joint  property  shall  be  sold  off,  and  the  con- 
cern wound  up.  No  partner,  therefore,  can  derive  a 
particular  advantage  by  choosing  an  unseasonable  mo- 
ment for  dissolution  ;  as,  by  so  doing,  he  must  suffer  in 
proportion  to  the  extent  of  his  interest  in  the  trade.  Nor 
is  it  clear  that  a  better  rule  could  be  suggested.  But 
whatever  is  its  policy,  the  principle  of  law  being  estab- 
lished, it  is  incumbent  on  those  who  engage  in  partner- 
ship to  protect  themselves  by  contract  against  its  incon- 
veniences :  if  they  omit  that  precaution,  courts  of 
[  *224  ]  justice  have  no  right  to  redeem  them  from  *the 
penalties  of  their  imprudence.  In  such  a  case,  a 
dissolution  may  be  brought  about  by  a  notice  given  by 
any  one  of  the  partners  to  the  other,  signifying  his  dis- 


OF    A    PARTNERSHIP.  224 

sent  to  the  further  continuance  of  the  partnership,  there 
being  no  necessity  to  resort  to  a  court  of  equity  for  its 
aid  and  inter vention.(2r)  Here  again  the  law  of  Eng- 
land corresponds  with  the  rule  of  the  civil  law.  Ma7iet 
autem  societas  eousque  donee  in  eodem  eonsensu  persevera- 
verint.  At  cum  alicjuis  renimciaverit  societati,  solvitur 
societas.{a)  Regularly  a  partnership  for  an  indefinite 
period,  constituted  by  deed,  can  be  dissolved  only  in  the 
same  manner  in  which  it  was  created ;  and  a  partner- 
ship similarly  formed,  but  limited  as  to  duration,  ought, 
if  the  partners  are  desirous  of  terminating  it  before  the 
expiration  of  the  time  originally  agreed  upon,  to  be  an- 
nulled by  deed,  according  to  the  maxim,  umimquodque 
dissolvitur  eo  ligamine  quo  ligatar.  But  although  the 
partnership  is  commenced  by  articles  unsealed,  in  which 
is  contained  an  agreement  for  a  copartnership  deed,  it  is 
nevertheless,  in  legal  eflfect,  a  partnership  formed  by 
parol,  and  consequently  may  be  dissolved  by  a  verbal 
notice.(^»)  And  where  there  is  a  partnership  constituted 
by  deed,  a  notice  that  it  is  dissolved,  signed  by  the  par- 
ties, for  the  purpose  of  being  inserted  in  the  Gazette,  is 
sufficient  evidence  of  the  dissolution  for  all  purposes 
against  the  parties  signing  it.(c) 

The  existence  of  engagements  with  third  persons, 
which  have  not  come  to  a  conclusion,  does  not  form  any 
objection  to  a  dissolution.  For  as  partners  are  neces- 
sarily entering  into  contracts  from  day  to  day,  which 
cannot  all  expire  at  the  same  period,  it  would,  if  their 
subsistence  furnished  ground  of  objection  to  a  dissolu- 
tion, be  hardly  possible  to  dissolve  any  partnership.  The 
partners  cannot,  it  is  true,  by  a  dissolution,  relieve  them- 
selves from  any  engagements  which  they  may  have 
contracted  with  strangers ;  but,  as  among  themselves, 
the  existence  of  such  engagements  cannot  prevent  a 
dissolution,  either  by  mutual  consent  or  notice.(c?)  Arti- 

(z)  Ex  parte  Nokes,  6  June  1801.     Cook's  M.  S. 
(a)  Inst.  lib.  3.  t.  26.  s.  4. 
(6)  Rackstraw  v.  Imber,  Holt's  N.  P.  C.  368. 
(c)  Doe  (1.  Waithman  v.  Miles,  1  Stark.  N.  P.  C.  181.     S.  C.  4 
Campb.  373. 

{d)  Featherstonhaugh  v.  Fenwick,  17  Ves.  298. 


224  THE    CAUSES?    OF   THE   DISSOLUTION 

cles  of  partnership  frequently  contain  a  provision  for  a 
dissolution,  upon  notice  to  be  given  by  any  one  of  the 
partners.  In  such  a  case,  the  mode  of  proceeding  pointed 

out  must  be  strictly  pursued,  and  a  regard  to 
[*225]  good   faith  must  *govern  the  conduct  of  the 

partner  who  w^ithdraws.  But  if  a  partnership 
be  commenced  for  a  limited  period,  with  a  right  reserved 
to  each  partner  of  dissolving  it  on  giving  a  year's  notice, 
and  after  the  expiration  of  the  period  originally  agreed 
upon,  it  be,  by  mutual  consent,  continued,  it  may  then 
be  dissolved  by  either  party  at  his  pleasure. (e)  In  the 
absence  of  an  express,  there  may  be  an  implied  con- 
tract, as  to  the  time  for  which  a  partnership  shall  en- 
dure;(/")  (1)  and  where  that  is  the  case,  the  partnership 
cannot  be  destroyed  by  the  act  of  the  party  until  the 
contemplated  period  arrives.  However,  the  purchase  of 
a  leasehold  interest  by  a  partnership  firm  does  not  ne- 
cessarily manifest  an  intention,  that  the  partnership  con- 
tract shall  be  co-existent  with  the  duration  of  the  lease ; 
although,  unquestionably,  the  purchase  may  be  so  made 
as  to  imply  an  agreement  that  the  partnership  should 
last  as  long  as  the  lease.(^)  But  if,  as  a  general  rule, 
such  an  inference  were  to  be  drawn  from  the  mere  act 
of  .purchase,  it  would  apply  alike  to  the  acquisition  of 
freehold  as  of  leasehold  interests,  and  consequently,  if 
the  partners  were  to  purchase  a  fee  simple,  it  must,  ac- 
cording to  that  principle,  be  concluded  that  they  intended 
the  partnership  should  ,exist  for  ever.(A)  When  the  dis- 
solution of  a  partnership,  to  which  any  partner  is  enti- 

(e)  Featherstonhaiigh  v.  Fenwick,  17  Ves.  298. 
(/)   Crawshay  u.  Maule,  1  Swanst.  508. 
{g)   Per  Lord  Eldon,  lb.  521.     S.  C.  1  J.  Wils.  181. 
(h)  Id.  Ibid.     Featherstonhaiigh  v.  Fenwick,   supra.     Jefferys  t>. 
Smith,  1  Jac.  &  Walk.  301. 


(1)  Though  a  co-partnership  is  by  the  articles  to  terminate  at  a  cer- 
tain period,  it  may  be  continued  by  express  or  tacit  consent ;  and  in 
such  case,  the  stipulations  of  the  original  articles  would  be  considered 
as  those  of  the  continuing  partnership.  Mifflin  v.  Smith,  17  Serg.  & 
Rawle,  165.  See  Dickinson  v.  Bold's  Survivors,  3  Desaus.  Cha.  Rep. 
501. 


OF    A    PARTNERSHIP.  225 

tied,  is  opposed  by  some  of  the  partners,  a  court  of 
equity  will  interfere ;  and,  under  such  circumstances,  it 
may  be  more  prudent  to  file  a  bill,  which  may  not  only 
pray  a  dissolution,  but  likewise  an  account  and  an  in- 
junction, restraining  the  dissentient  partners  from  exe- 
cuting securities  in  the  name  of  the  firm,  and  from 
receiving  the  partnership  debts.(i)  There  is  an  instance 
of  an  application  to  a  court  of  equity  to  inhibit  the  dis- 
solution of  a  commercial  partnership  ;(A:)  and  it  has  been 
said,  that  on  proper  grounds  such  an  application  may  be 
sustained.(/) 

It  may  be  doubted  whether,  as  against  a  client  who, 
having  employed  solicitors  in  partnership,  has  a 
right  to  their  united  *exertions,  the  solicitors  are  [  *226  ] 
at  liberty  to  dissolve  their  partnership,  and  turn 
the  client  over  to  one  of  them  ;  it  should  seem  they  have 
not,  as  against  him,  the  power  of  dissolving  their  part- 
nership ;(m)  but,  however  that  may  be,  a  retiring  part- 
ner can  never  be  considered  as  a  discharged  solicitor. 
The  client,  after  such  dissolution  of  partnership,  cannot 
employ  both ;  and  it  would  be  impossible  to  maintain, 
that,  if  he  employ  one,  the  other  is  let  loose,  and  dis- 
charged from  all  those  obligations  which  he  had  under- 
taken. A  solicitor  under  such  circumstances,  if  retained 
against  his  former  client,  must  (however  high  his  per- 
sonal character)  be  considered,  hypothetically,  as  em- 
ployed for  no  other  reason  except  the  very  improper  one, 
that  he  had  been  previously  employed  by  the  other  party; 
and  upon  the  clearest  general  principle,  that  cannot  be 
admitted.(w) 

The  eflfect  of  the  marriage  of  a  feme  sole  partner  has 
never  been  expressly  decided ;  but,  upon  general  princi- 

(i)  Master  v.  Kirton,  3  Ves.  74.  Lawson  v.  Morsan,  1  Price,  303, 
Ryan  u.  Mackmath,  3  Bro.  C.  C.  15. 

(A:)  Chavany  v.  Van  Sommcr,  3  Woodd.  Lect.  416.  n.  S.  C.  1 
Swanst.  512.  n. 

{I)  1  Madd.  Ch.  Pr.  160. 

{ni)  Cook  V.  Rhodes,  in  note  to  19  Ves.  273. 

(n)  Cholmondeley  v.  Clinton,  19  Ves.  267.  S.  C.  Coop.  80;  and 
see  Beer  v.  Ward,  1  Jacob,  82. 


226  THE    CAUSES    OF    THE    DISSOLUTION 

pies,  it  would  most  probably  be  held  to  operate  a  disso-^ 
lution  of  the  partnership.(o)  (1) 

Where  articles  of  partnership  are  entered  into,  it  fre- 
quently happens  that  a  precise  term  is  fixed  for  the 
duration  of  the  contract.  In  that  case,  the  partnership^, 
if  it  do  not  meet  with  an  intermediate  legal  or  acci- 
dental termination,  is  regularly  dissolved  by  the  effluxion 
or  expiration  of  the  period  originally  stipulated  for  its 
existence.  A  partnership  so  constituted  cannot  be  de- 
feated by  the  will  of  one  or  of  any  number  of  the  part- 
ners short  of  the  whole  of  them  ;  but,  of  course,  if  they 
all  agree  upon  a  separation,  they  may  do  so  at  any 
time.(2) 

Besides  the  instances  of  dissolution  occasioned  by  the 
act  of  God,  or  efl?ected  by  the  parties  themselves,  a  part- 
nership contract  entered  into  for  a  term  of  years,  may, 
in  some  cases,  before  the  term  has  expired,  be  terminated 
by  the  act  of  the  law.  Where  it  appears  that  the  con- 
templated undertaking  cannot  be  carried  on  according  to 
the  true  intent  and  meaning  of  the  articles  of  co-partner- 
ship, as  if  a  partnership  be  formed  for  carrying  into  effect 
a  new  invention,  which,  after  repeated  trials  is 
[  *227]  found  impracticable,  *a  court  of  equity  will  dis- 
solve \i.{p)  And  although  the  misconduct  of  a 
partner  in  trifling  circumstances,  which  is  not  of  such  a  na- 
ture as  to  defeat  the  object  for  which  the  partnership  was 
formed,  seems  not  to  be  a  sufficient  cause  for  dissolving  a 
partnership  ;{cj)  yet,  if  the  conduct  of  partners  has  been 

{o\  Wats,  on  Partn.  384.     See  also  1  Swanst.  517.  n. 
(p)  Baring  v.  Dix,  1  Cox's  Ca.  213 

{q)  Goodman   v.   Whitcomb,    1    Jac.    &    Walk.    593.     Liardet  v. 
Adams,  Mont,  on  Partn.  90. 


(1)  See  15  Johns.  Rep.  82.  3  Kent's  Comm.  55.  2d  Edit. 

(2)  "  Even  where  partners  covenant  with  each  other,  that  the  part- 
nership shall  continue  seven  years,  either  party  may  dissolve  it  the 
next  day,  by  proclaiming  his  determination  for  that  purpose,  the  only 
consequence  being,  that  he  thereby  subjects  himself  to  a  claim  for 
damages  for  a  breach  of  his  covenant."  Per  Platt,  J.,  Skinner  v. 
Dayton,  19  Johns.  Rep.  538.  3  Kent's  Comm.  54.  55.  2d  Edit, 
Sed  qiisere.  See  the  reasoning  of  Judge  Washington,  4  Wash.  C.  C. 
Rep.  234. 


OF   A   PARTNERSHIP.  227 

such  as  to  render  it  impossible  to  carry  on  the  partnership 
upon  the  terms  on  which  it  was  entered  into,(r)  or  if  one 
partner  be  entirely  excluded  by  the  others  from  his  inte- 
rest in  the  partnership,(6)  or  if  there  be  a  gross  abuse  of 
good  faith  between  the  parties(0  a  dissolution  will,  in  such 
cases,  be  decreed  at  the  instance  and  on  the  complaint 
of  a  single  partner,  notwithstanding  the  other  partners 
object  to  it.(u)     So  violent  and  lasting  dissension  seems 
to  be  a  ground  upon  which  a  court  of  equity  will  decree 
a  dissolution ;  as  where  the  parties  refuse  to  meet  each 
other  on  matters  of  business ;  a  state  of  things  which 
precludes  the  possibility  of  the  partnership  business  being 
conducted  with  advantagc.(t?)     A  society  for  rehef  in 
sickness,  by  means  of  a  fund  raised  by  subcription  of  the 
members,  has  been  considered  as  a  partnership,  it  having 
no  corporate  character  ;(t^)(l)  and  where  it  has  been 
found  that  the  society  has  existed  upon  principles  which, 
with  reference  to  the  amount  of  the  number  of  subscri- 
bers, and  the  nature  of  the  subscriptions,  made  the  whole 
a  bubble,  the  same  has  been  dissolved,  each  member  re- 
ceiving a  portion  of  the  sums  subscribed.(:c)     The  court 
will  likewise  dissolve  friendly  societies  founded  on  erro- 
neous principles;  and,  until  a  dissolution  takes  place, 
will  restrain  the  trustees  from  making  payments  which 
may  tend  to  exhaust  the  funds.(y) 

An  act  of  bankruptcy  committed  by  one  partner,  if  fol- 
lowed by  a  commission  and  assignment,  is  a  dissolu- 

(r)  Waters  v.  Taylor,  2  Ves,  «fc  Bea.  299. 

[s)  Goodman  v.  Whitcomb,  supra. 

\t)  Chapman  v.  Beach,  1  Jac.  &  Walk.  594. 

(u)  Baring  t'.  Dix,  supra.  See  Glassington  v.  Thwaites,  I  Sim.  &l 
Stu.  129.  notes  (a)  and  (b). 

(v)  De  Berenger  v.  Haramell,  cor.  Sir  L.  Shadwell.  Jarman's 
System  of  Conveyancing,  7th  vol.  p.  26. 

(w)  Beaumont  v.  Meredith,  3  Ves.  «fc  Bea.  180. 

(.r)  Buckley  v.  Cater,  stated  17  Ves.  15.  Pearce  v.  Piper,  ibid.  1. 
Beaumont  v.  Meredith,  svj)ra. 

(t/)  Reeve  v.  Parkins,  2  Jac.  &  Walk.  390 ;  and  see  Ellison  v.  Big- 
nold,  ibid.  503. 


(1)  Babb  V.  Reed,  ct  ul.  trustees,  &c.,  5  Rawle,  151. 
39 


228  THE   CAUSES  OF   THE  DISSOLUTION 

[  *228  ]  tion  of  the  partnership  *for  all  purposes,  as 
regards  the  bankrupt  partner,  by  virtue  of  the 
relation  to  the  statutes  concerning  bankrupts,  which 
avoid  all  the  acts  of  a  bankrupt  from  the  time  of  the 
act  of  bankruptcy,  and  from  the  necessity  of  the  thing, 
all  his  property  being  vested  in  his  assignees,  who  be- 
come tenants  in  common  of  his  share  of  the  partnership 
stock.(^)(l)  And  with  respect  to  the  solvent  partner, 
the  bankruptcy  of  his  copartner  so  far  operates  a  disso- 
lution of  the  partnership,  as  to  prevent  his  dealing  with 
the  partnership  property  for  future  purposes,  as  if  the 
partnership  continued;  but  in  respect  of  past  transac- 
tions or  claims  which  were  consummate  at  the  time  of 
the  bankruptcy,  the  solvent  partner  is  not  prevented 
from  exercising  the  control  which  rests  with  him  over 
the  partnership  effects,  to  take  care  that  they  are  duly 
applied  in  liquidation  of  the  partnership  debts.(rt)  With 
reference  to  the  bankrupt  partner,  it  was  for  some  time 
doubtful,  whether  the  act  of  bankruptcy,  the  commission, 

(z)  Hague  v.  Eolleston,  4  Burr.  2174.  Smith  v.  De  Sylva,  Cowp. 
471.  Ex  parte  Ruffin,  6  Ves.  126.  Ex  parte  Williams,  11  Ves.  5. 
Wilson  V.  Greenwood,  1  Swanst  480.  S.  C.  1  J.  Wilson,  223.  In 
re  Wait,  1  Jac.  &,  Walk.  009.     Per  Bayley  J.,  10  East,  426. 

(a)  Harvey  v.  Crickett,  5  Mau.  &  Selw.  336.  See  also  dictum  of 
Lord  Ch.  B.  Thomson  in  Coldwell  v.  Gregory,  1  Price,  129.  S.  C.  2 
Rose,  149.     Ex  parte  Blakey,  1  Glyn  &  James,  198. 


(1)  15  Johns.  Rep.  82.  17  Johns.  Rep.  535.  So  a  voluntary  bona 
fide  assignment  by  one  of  several  partners,  of  all  his  interest  in  the  co- 
partnership stock,  &c.  ipso  facto  dissolves  the  partnership ;  although 
one  of  the  articles  expressly  provides,  that  the  partnership  is  to  continue 
until  two  of  the  contracting  parties  shall  demand  a  dissolution,  and  the 
other  partners  wish  the  partnership  business  to  go  on  notwithstanding 
the  assignment.  Marquand  et  al.  v.  The  N.  F.  Mati.  Comjmny,  17 
Johns.  Rep.  525.  Mitmford  v.  McKay,  8  Wend.  Rep.  442.  But  an 
assignment  of  their  property  by  a  firm  consisting  of  two  partners,  con- 
taining a  condition  that  it  shall  enure  only  to  the  benefit  of  such  credi- 
tors as  shall  agree  to  look  to  each  of  the  partners  for  only  such  moiety 
of  such  balance  as  shall  remain  after  a  dividend  of  the  property  assigned, 
followed  up  by  a  covenant  to  that  effect  on  the  part  of  the  creditors, 
does  not  produce  a  severance  of  the  partnership,  although  in  the  instru- 
ment executed  by  the  creditors  there  be  a  covenant  on  the  part  of  the 
partners  that  they  will  individually  pay  a  moiety  of  such  balance.  Le 
Page  v.  McCrea,  1  Wend.  Rep.  164. 


OF  A   PARTNERSHIP.  228 

or  the  assignment,  should  be  considered  as  operating  the 
dissolution.  In  one  case,(ft)  Lord  Mansfield  seemed  to 
conceive  that  it  was  the  act  of  bankruptcy :  in  another 
case,(c)  that  effect  was  ascribed  by  him  generally  to  the 
bankruptcy.  However,  from  several  decisions  which 
have  subsequently  taken  place,  it  seems  now  settled, 
that  the  joint  tenancy  is  not  fully  severed  until  the  part- 
ner against  whom  the  commission  issues  is  adjudged  a 
bankrupt,  but  that  the  dissolution  has  then  a  retrospect 
to  the  act  of  bankruptcy.(rf)  The  adjudication  that  the 
party  is  a  bankrupt  is,  indeed,  so  effectual  a  dissolution, 
that  the  bankrupt  himself  may,  it  has  been  said,  insist 
upon  its  having  terminated  the  partnership.(e)  But  if 
the  commission  be  fraudulently  taken  out  for  a  purpose 
foreign  to  its  object,  as  with  the  express  view- 
thereby  of  working  a  dissolution  *of  the  partner-  [  *229  ] 
ship,  the  Lord  Chancellor  will  direct  it  to  be 
sueperseded  at  the  cost  of  those  at  whose  instance  it 
was  issued,  although  there  be  a  trading,  a  debt,  and  an 
act  of  bankruptcy,  for  the  great  seal  will  not  permit  such 
an  abuse  of  its  process.(/)  To  warrant  the  granting  a 
supersedeas^  however,  there  must  be  fraud,  it  not  being 
sufficient  to  show  the  existence  merely  of  a  by-motive, 
because  a  commission  is,  in  a  qualified  sense,  a  legal 
right,  like  an  action,  and  courts  of  justice  have  no  con- 
cern with,  or  power  to  inquire  into,  the  motives  of  par- 
ties who  assert  a  legal  right.  Therefore,  where  a  cre- 
ditor of  a  firm  being  displeased  with  the  conduct  of  one 
of  the  partners,  and  being  convinced,  that  if  he  continued 
in  the  concern  he  would  ruin  it,  arrested  all  the  partners; 
they,  with  the  exception  of  the  one  with  whom  the  cre- 
ditor was  displeased,  put  in  bail,  but  he  remained  in  pri- 
son until  two  months  expired,  and  then  he  was  made  a 

(6)  Fox  V.  Hanbury,  Cowp.  448.      (c)  Hague  v.  RoUeston,  supra. 

{d)  Ex  parte  Smith,  5  Ves.  295.  Smith  v.  Stokes,  1  East,  363. 
Dutton  w.  Morrison,  17  Ves.  204.  Barker  v.  Goodair,  11  Ves.  78. 
Upon  the  issuing  of  a  commission,  the  assignment  by  the  commission- 
ers has  a  relation  back  to  the  first  act  of  bankruptcy,  committed  subse- 
quent to  the  petitioning  creditor's  debt.     Ex  parte  Birkett,  2  Rose,  71 . 

(e)  Pidcock  w.  Kilby,  Mont,  on  Partn.  91.  n.  (1). 

\f)  Ex  parte  Browne,  1  Rose,  151.  See  also  Ex  parte  Harcourt, 
2  Rose,  203,     Ex  parte  Gallimore,  ibid.  424. 


'229  THE   CAUSES  OF   THF.   DISSOLI^TION 

bankrupt  by  the  creditor,  ^vho  continued  his  dealings 
with  the  other  partners.  On  a  petition  being  presented 
by  the  bankrupt  to  supersede  the  commission,  on  the 
ground  that  an  unfair  use  had  been  made  of  the  same, 
it  being  issued  for  the  purpose  of  dissolving  the  partner- 
ship, so  far  as  respected  him,  the  Vicc-Chancellor,  after 
conferring  with  the  Lord  Chancellor  on  the  subject,  dis- 
missed the  petition,  observing,  that  the  commission  was 
not  affected  by  any  by-object  in  the  petitioning  creditor, 
and  that  it  was  not  fraudulent  on  his  part,  if,  without 
concerting  with  the  other  partners,  he  desired  to  operate 
a  dissolution,  considering  it  an  advantageous  measure 
for  himself,  that  the  bankrupt  should  not  continue  in  a 
firm  with  which  he  had  dealings.(^) 

An  execution,  likewise,  under  which  all  the  interest  of 
one  partner  is  siezed  and  sold,  is  a  determination  of  the 
partnership  as  to  him :  because  whatever  interest  he 
possessed  is  divested  out  of  him,  and  becomes,  by  the 
sale,  vested  in  the  vendee  of  the  sheriff,  who  is  tenant  in 
common  with  the  solvent  partners. (/«)(!) 

A  partnership  may  likewise  be  dissolved  by  an  award. 
It  is  customary  in  regular  partnerships,  to  insert 
[  *230  ]  a  clause  in  the  ^articles,  by  which  the  partners 
covenant  to  submit  to  arbitration  any  matter  or 
thing  which  may  become  the  subject  of  controversy  or 
dispute  between  them.  And  although  in  such  cases  the 
arbitrators  are  usually  judges  of  the  parties'  own  choos- 
ing, and  proceed  in  a  summary  way ;  yet,  if  duly  autho- 
rised, their  reward  is  considered  final,  consequently  bind- 
ing upon  the  parties,  unless  there  should  appear  just 
grounds,  either  at  law,  or  in  equity,  to  set  it  aside.  And 
it  is  a  mode  of  dissolving  a  partnership  very  frequent 

{g)  Ex  parte  Wilbran,  5  Madcl.  1.  S.  C.  1  Buck,  461.  And  see 
Ex  parte  Bourne,  1  Glyn  &  James.  311.  But  see  S.  C.  2  Glyn  <fe 
James,  137,  in  which  the  former  order  was  reversed. 

{h)  Sayerv.  Bennet,  Mont,  on  Partn.  notes,  p.  17.  In  Fox  v.  Han- 
bury,  Cowp.  445,  Lord  Mansfield  assumed  that  a  partnership  might  be 
dissolved  by  an  execution.  And  see  Waters  v.  Taylor,  2  Ves.  &  Bea. 
299. 


(1)  Per  Curiam,  Murray  v.  Mvmford,  6  Cow,  Rep.  443. 


OF   A    PARTNERSHIP.  230 

amongst  merchants  and  traders,  and  is  considered  a 
ready  method  of  adjusting  partnership  claims.  In  order 
to  empower  arbitrators  to  direct  a  dissolution,  it  is  not 
necessary  for  the  parties,  submitting  to  arbitration,  to 
give  them  an  express  authority  for  the  purpose ;  since, 
if  two  partners  refer  all  matters  in  difference  between 
them,  and  the  question  of  the  dissolution  be,  at  the  time 
of  the  reference,  a  subject  of  dispute,  the  arbitrators  may 
dissolve  the  partnership.(i)(l) 


SECTION  II. 
The  Consequences  of  the  Dissolution  of  a  Partnership. 

Having  pointed  out  the  various  causes  which  operate 
a  dissolution  of  a  subsisting  partnership,  and  likewise  the 
modes  by  which  a  partnership  may  be  dissolved,  it  now 
remains  to  be  considered  what  are  the  consequences 
resulting  from  a  dissolution,  in  whatever  manner  it  is 
brought  about.  These  may  be  considered,  either  as  they 
affect  a  total  or  a  partial  destruction  of  a  partnership,  a 
complete  annihilation  of  a  firm,  or  a  dissolution  merely 
for  the  purpose  of  making  an  alteration  in  it,  by  the  re- 
tirement of  an  old  and  the  introduction  of  a  new  mem- 
ber. The  consequences  which  particularly  ensue  a  dis- 
solution occasioned  by  the  bankruptcy  or  the  death  of  a 
partner  we  will  separately  examine. 

Where  a  partnership  is,  by  notice,  by  death,  or  by  any 
other  mode  of  determination,  actually  ended,  as  regards 
all  the  partners,  no  one  of  them  can  make  use  of  the 

{%)  Green  v.  Waring,  1  Blackst.  Rep,  475. 


(1)  See  Byres  v.  Van  Deiisen,  5  Wend.  Rep.  268.  A  commercial 
partnership  existing  between  a  citizen  of  the  United  States,  and  the 
subject  of  another  country,  is  dissolved  by  the  breaking  out  of  a  war 
between  the  two  countries.  Griswoldv.  Waddington,  16  Johns.  Rep. 
438.  S.  C.  15  Johns,  Rep.  5.  See  as  to  the  affect  of  residence  in  a 
hostile  country  by  a  partner.  The  San  Jose  Indiana,  2  Gallis.  Rep. 
268. 


230  THE   CONSEQUENCES  OF  THE 

partnership  estate  in  a  manner  inconsistent  with  the 
winding  up  of  the  concern.    The  object  of  their  original 

association  is  then  terminated,  and  their  power 
[  *231  ]  *of  employing  the  joint  property  in  the  way  of 

trade  ceases.(l)  The  partners  cannot  create  any 
new  obhgations ;  for  after  a  dissolution  nothing  remains 
to  be  accomplished,  except  the  arrangement  of  the  affairs 
of  the  partnership ;  but,  until  they  are  settled,  the  connec- 
tion between  the  partners  subsists  ;(2)  and  in  that  sense, 
and  until  such  a  settlement  take  place,  the  partnership 
may  be  said  to  continue,  and  the  ex-members  of  the  firm 
may  be  sued  as  existing  partners.(a)  From  the  nature 
of  a  partnership,  engagements  may  be  contracted  which 
cannot  be  fulfilled  during  its  existence,  exposed  as  it  is 
to  sudden  and  arbitrary  terminations;  and  the  con- 
sequence, therefore,  must  be,  that,  for  the  purpose  of 
makin;^  good  outstanding  engagements,  of  taking  and 
settling  all  the  accounts  and  converting  all  the  property, 
means,  and  assets  of  the  partnership,  existing  at  the  time 
of  the  dissolution,  as  beneficially  as  may  be  for  the 
benefit  of  all  who  were  partners,  according  to  their  res- 
pective shares  and  proportions,  the  legal  interest  subsists, 
although,  for  all  other  purposes,  the  partnership  is  ac- 
tually determined. (6)  The  arrangement  of  the  affairs 
being  then  the  sole  object  and  purpose  to  be  attained 
after  a  dissolution,  a  court  of  equity  will,  in  all  cases, 
interpose  where  the  conduct  of  partners  is  of  a  descrip- 
tion not  likely  to  be  attended  with  such  a  result.    There- 

(«)  Ex  parte  Williams,  11  Ves.  5.  Peacock  v.  Peacock,  16  Ves. 
57.  Wilson  v.  Greenwood,  1  Swanst.  480.  S.  C.  1  J.  Wilson,  223. 
Crawshay  v.  Maule,  ibid.  506.  S.  C.  1  J.  Wils.  181. 

(6)  Crawshay  w.  Collins,  15  Ves.  227.  Natusch  ».  Irving.  Appendix, 
post. 


(1)  Whiteman  v.  Leonard,  3  Pick.  I?ep.  177. 

(2)  It  has  been  held  in  South  Carolina,  that  after  the  dissolution  of  a 
partnership,  one  of  the  partners  may  consent  that  the  holder  of  a  note, 
indorsed  by  the  firm  previous  to  the  dissolution,  may  compound  with 
and  release  the  drawer,  and  his  consent  will  bind  the  other  partner  to  be 
answerable  for  the  balance  due  ;  and  this  upon  the  ground  that  such 
consent  was  not  the  creation  of  a  new  liabilily,  but  the  keeping  alive 
the  old  one.      Union  Bunk  v.  Hull,  1  Harper's  Rep.  246. 


DISSOLUTION  OF  A  PARTNERSHIP.,  231 

fore,  if  one  partner  trade  with  the  joint  property  on  his 
separate  account,(c)  or  if  he  interfere  with  it  otherwise 
than  for  the  settlement  of  the  joint  afrairs,(6/)  or  if 
some  members  of  the  firm,  in  closing  the  transactions, 
seek  to  exclude  others  from  a  just  share  in  the  manage- 
ment,(e)  (1)  a  court  of  equity  will  appoint  a  manager  or 
receiver  to  wind  up  the  concern,  and  will  direct  inquiries 
in  what  manner  it  can  be  wound  up  most  beneficially  to 
those  interested.(/)  (2)  But  to  justify  a  call  for  this 
summary  interference,  some  fraudulent  breach  of  con- 
tract or  duty  must  be  shown ;  for  a  receiver  will  not  be 
appointed,  merely  on  the  ground  of  a  previous  dissolution 
of  the  partnership  having  taken  place.(^)  In 
some  cases  of  dissolution  by  the  *bankruptcy  of  [  *232  ] 
one  partner,  the  solvent  partner  will  be  enabled 
to  deal  solely  with  the  partnership  property;  and  for 
that  purpose  will  be  appointed  the  receiver  of  it,  but 
without  a  salary.(A)  Where  on  a  dissolution  of  part- 
nership, and  a  bill  filed  for  an  account,  a  receiver  was 
appointed,  it  was  held  that  the  court  would  not  compel 
the  managing  partner  to  deliver  up  to  the  receiver,  books, 
deeds,  &c.  belonging  to  a  third  party  (a  client  of  the 
partners,)  such  partner  oflfering  free  access  and  inspec- 
tion, and  to  assist  in  making  out  the  bills.(i) 

(c)  Harding  v.  Glover,  18  Ves.  281. 

(/)  Crawshay  v.   Maule,   1  Swanst.  507.     S.  C.     1  J.  Wils.  181. 
Heathcote  v.  Hulme,  1  Jac.  &  Walk.  128. 

(e)  Wilson  v.  Greenwood,  1  Swanst.  481.    S.  C.   1  J.  Wilson,  22.3. 

(/)  Crawshay  v.  Maule,  supra. 

{g)  Harding  v.  Glover,  18  Ves.  281.  Wilson  v.  Greenwood,  supra. 

(h)  Ex  parte  Stoveld.  1  Glyn.  &  James.  303. 

(i)   Dacie  v.  John,  1  McClell.  &  Y.  206. 


(1)  See  Law  v.  Ford,  2  Paige's  Cha.  Rep.  310. 

(2)  See  Gratz  et  al.  v.  Bayard  et  al.  1 1  Serg.  &;  Rawle,  48.  These 
are  powers,  however,  which  were  possessed  by  no  court  in  Penns^/Z- 
vania,  until  the  passage  of  the  act  of  June  16th,  1836,  (Pamph.  Laws, 
789,)  by  the  13th  section  of  which  it  is  provided,  "that  the  Supremo 
Court,  when  sitting  in  Bank,  in  the  city  of  Philadelphia,  and  the  Court 
of  Common  Pleas  for  the  said  city  and  county  [of  Philadelphia]  shall 
have  the  power  and  jurisdiction  of  Courts  of  Chancery  [Equity]  so  far 
as  relates  to  the  supervision  and  control  of  partnerships.' 


232  THE  CONSEQUENCES  OF  THB 

We  will  now  endeavour  to  explain  what  is  considered 
as  falling  under  the  description  o^  joint  property  at  the 
termination  of  a  partnership.     The  joint  property  con- 
sists of  the  remaining  stock  which  existed  at  the  formation 
of  the  partnership,  with  the  additions  made  to  it  in  the 
course  of  trade,  either  during  the  continuance  of  the 
partnership,  or  subsequently  thereto ;  for  if  the  trade  be 
carried  on  by  one  partner  with  the  joint  capital,  he  must 
account  for  the  profits  he  may  derive.(A;)(l)     Real  es- 
tates acquired  by  the  partnership  are,  as  we  have  seen,(/) 
regarded  in  no  other  light  than  as  a  partnership  property, 
and  consequently  they  form  a  portion  of  the  joint  fund. 
Nor,  as  it  has  been  observed,  does  it  matter  that  the 
freehold  interest  purchased  by  the  firm  is  conveyed  to 
one  partner.      Such  a  conveyance  does  not  alter  the 
nature  of  the  purchase,  nor  affect  the  rights  of  the  other 
partners.     The  property  still  continues  to  form  an  article 
of  joint  estate,  and,  as  such,  must  be  brought  into  the 
common  fund.(m)  (2)    And  where  a  renewal  of  the  lease 
of  part  of  the  partnership  premises  is  clandestinely  ob- 
tained by  a  member  of  a  partnership,  dissoluble  at  plea- 
sure, although  it  does  not  follow  that  all  the  concerns 
conducted  upon  the  premises  are  a  part  of  the  joint 
estate,  yet  the  lease  will,  on  a  dissolution,  form  a  por- 
tion of  the  partnership  property;  because  a  partner  so 
treating   will   not   be  permitted   to   secure   to   himself 
the  good-will  of  the  trade,  in  exclusion    of  his  part- 

(h)  Brown  v.  Vidler,  cited  15  Ves.  223.  Coxwell  v,  Broraet,  cited 
ib.  Crawshay  v.  Collins,  ib.  229.,  and  1  Jac.  &  Walk.  267.  Fea- 
therstonhaugh  v.  Fenwick,  17  Ves.  298. 

(Z)    See  ante,  p.  32. 

(m)  Smith  v.  Smith,  5  Ves.  189.;  and  see  Alder  «.  Fouracre,  3 
Swanst.  489. 


(1)  Brown  v.  De  Tastet,  Jac.  Rep.  284.  The  surviving  partners 
retained  the  capital  of  a  deceased  partner,  and  employed  it  in  trade — 
decreed  to  account  for  the  profits. 

(2)  Tlie  widow  of  a  deceased  partner  is  not  entitled  to  dower 
in  the  lands  and  houses  purchased  with  the  co-partnership  funds, 
and  held  in  the  name  of  all  the  co-partners,  or  on  their  behalf.  Kick- 
ardson's  ExWs.  v.  WyutVs  Ex,  2  Desaus.  Ciia.  Kep.  471. 


I 


DISSOLUTION    OF    A    PARTNERSHIP.  233 

ners.(n)  So  mines  are,  for  many  purposes  *part-  [  *233  ] 
nership  property.  They  are,  like  all  personal 
property,  liable  to  debts  of  the  partnership,  and  debts  to 
.the  co-partnership.(o)  But  that  only  is  to  be  considered 
as  co-partnership  property  which  belongs  jointly  to  all  the 
partners,  whether  it  arise  simply  from  contributions  inter 
se,  or  is  composed  in  one  part  of  contributions,  and  in 
the  remaining  part  of  acquisitions  made  by,  or  profits 
derived  from,  the  use  and  application  of  the  capital 
formed  by  such  contributions.  A  distinct  and  indepen- 
dent fund,  belonging  to  different  but  not  to  all  the  indi- 
vidual members  of  the  firm,  which  is  not  commensurate 
with  joint  property,  and  does  not  succeed  to  the  place  of 
it,  does  not  fall  within  the  meaning  of,  and  is  not  dis- 
tributable as  joint  estate :  if  it  were  so  distributable,  the 
partners  uninterested  in  such  fund  would  be  relieved 
from  the  weight  of  debt  which  otherwise  they  must  bear, 
at  the  same  time,  probably,  that  the  separate  creditors 
of  the  actual  owners  might  have  claims  against  it,  and 
who,  therefore,  w  ould  be  entitled  to  priority  of  satisfac- 
tion. For  instance,  if  one  joint  owner  of  a  ship  insure 
his  share  or  interest,  and  a  loss  happen,  the  money  re- 
covered upon  the  policy  will  be  separate,  and  not  joint 
property. (p)(l)     So,  if  a  partnership  consisting  of  three 

(n)  Featherstonhaugh  v.  Fenwick,  supra.  Wilson  v.  Greenwood, 
1  J.  Wilson,  223. 

(o)  Fereday  v.  Wightwick,  1  Tamlyn's  Rep.  250.  Jefferys  v. 
Smith,  1  Jac.  &  Walk.  298. 

(p)  Ex  parte  Parry,  5  Ves.  575  ;  and  see  Ex  parte  Smith,  3  Madd, 
63.     S.  C.  Buck.  149. 


(1)  Garrell  v.  Hanna,  5  Ilarr.  &  Johns.  412.  Graves  v.  Barne- 
wall,  2  Cranch,  419.  But  if  the  acting  partner  in  a  concern  of  two, 
causes  insurance  to  be  effected  for  the  amount  of  his  own  share,  and  the 
policy  state  it  to  be  on  his  account,  but  retain  the  general  printed  words 
of  *'  whomsoever  else  it  may  concern,"  the  insurance  will  be  held  to  have 
been  made  on  joint  account,  if  such  appear  to  have  been  the  intention  of 
the  assured  ;  and  to  gather  this  intention,  the  letters  of  the  assured  may 
be  referred  to,  though  they  were  never  shown  to  the  underwriter,  who 
subscribed  upon  seeing  instructions  to  insure  only  on  the  separate  ac- 
count of  the  acting  partner.  Laivrence  v.  Seebor,  2  Caines'  Rep.  203. 
See  Turner  v.  Biirrows,  5  Wend.  Rep.  541.  S.  C.  8  Wend.  Rep.  144, 
in  error,  judgment  affirmed. 

40 


233  THE  CONSEQUENCES  OF  THE 

partners  were  to  sustain  an  accidental  loss,  as  by  fire, 
and  an  individual  were  to  make  a  donation  to  two  of 
the  partners  in  compensation  of  their  loss,  such  a  gift 
to  the  two  partners  would  not  render  the  subject  of  it 
partnership  property.(9)  And  in  a  late  case,  where  it 
appeared  that  two  American  citizens(l)  and  a  French 
subject,  residing  at  St.  Domingo^  were  in  partnership, 
and  were  owners  of  certain  ships  captured  by  British 
cruizers,  and  that  the  commissioners  appointed  under 
the  treaty  of  commerce  concluded  in  the  year  1794  be- 
tween this  country  and  America,  for  awarding  compensa- 
tion to  American  subjects  who  had  suffered  losses  by 
capture,  for  which  they  could  obtain  no  redress  in  the 
ordinary  tribunals,  had  awarded  in  compensation  of  the 
ships  of  the  partnership  captured  certain  sums  to  the  two 
Americans,  with  express  exclusion  of  the  French  citizen 
as  an  alien  enemy,  it  was  determined,  that  the  sums 
so  awarded  were  not  partnership  property.(r) 
[  *234  ]  There  the  property  in  *the  ships  was  irrevoca- 
bly lost  and  gone  by  the  capture  and  condemna- 
tion, and  the  subsequent  bounty  to  the  two  being  mat- 
ter of  liberality  and  conciliation,  but  not  of  strict  legal 
right,  could  not  be  considered  as  resulting  to  the  benefit 
of  all  the  partners,  without  contravening  the  terms  of 
the  grant.  If,  instead  of  compensation,  restitution  of  the 
ships  had  been  ordered,  the  capture  would  not,  perhaps, 
have  altered  the  property,  because  it  would  have  been 
unaflfected  by  the  sentence  of  condenmation.  And,  in 
such  a  case,  the  res  ipsa  being  returned,  and  remaining 
in  solido  in  the  possession  of  the  two  partners,  nothing 
would  have  occurred  to  have  changed  its  identity,  and 
consequently  the  rights  existing  antecedently  to  the  cap- 
ture would  have  been  restored.(s) 

When   the  common  property  is   ascertained,  either 
partner  may  insist  upon  a  sale  of  the  whole  concern. 

{q)  2  Swanst.  573.  (r)  Campbells.  MuUett,  2,Swanst.  551. 

(s)  Thompson  i'.  Ryan,  2  Swanst.  565.  n. 

(1)  The  word  "  subjects"  was  used  in  the  preceding  London  edition. 


DISSOLUTION    OF    A    PARTNERSHIP.  234 

The  rights  of  the  partners  respectively  are  then  precisely 
equal  Teach  may  require  the  whole  concern  to  be  wound 
up  by  a  sale,  and  a  division  of  the  produce.  One  partner 
has  no  claim  upon  his  individual  proportion  of  a  specific 
article,  nor  can  he  insist  upon  an  exclusive  right  in  it, 
but  he  is  entitled  only  to  a  general  arrangement  of  the 
partnership  concerns,  and  for  that  purpose  to  an  account 
of  the  produce  of  the  aggregate  joint  efrects.(^)(l)  He 
cannot  separate  his  share  from  the  bulk  of  the  joint  pro- 
perty, nor  compel  his  co-partner  to  accept  what,  accord- 
ing to  a  valuation,  his  interest  may  be  worth.(z/)  That 
is  not  the  mode  in  which  a  court  of  equity  winds  up  the 
concerns  of  a  partnership,  but  in  every  case  in  which 
that  court  interferes  in  closing  the  transactions  of  a 
firm,  it  directs  the  value  of  the  whole  of  the  joint  pro- 
perty, whether  real  or  personal,  to  be  ascertained  in  the 
way  in  which  it  can  be  best  ascertained,  viz.  by  a  sale 
and  its  conversion  into  money.(u)  Nor,  in  the  case 
of  a  suit  instituted  for  the  dissolution  of  a  partner- 
ship, where  it  is  clear,  from  the  pleadings 
*that  all  or  some  of  the  parties  have  a  right  to  [*235  ] 
a  dissolution,  does  the  court  wait  until  a  final 
decree  is  made  before  it  orders  a  sale.  Such  a  delay 
might  be  attended  with  considerable  inconvenience.  The 
record  itself  disclosing  sufficient  to  entitle  the  complain- 
ant to  call  for  a  dissolution,  a  decree  directing  a  disso- 

{t)  Crawshay  v.  Collins,  15  Ves.  229.  Lingen  v.  Simpson,  1  Sim. 
&  Slu.  600. 

(«)  Featherstoiihaugh  v.  Fenwick,  17  Ves.  309.  See  Natusch  v. 
Irving,  Appendix,  post. 

{v)  Feredayu.  Wightwick,  1  Tamlyn's  Rep.  261.  In  Rigden  v. 
Pierce,  6  Madd.  353,  where  the  articles  stipulated  for  an  equal  division 
of  the  partnership  property  on  a  dissolution,  after  payment  of  the 
partnership  debts,  it  was  held  that  it  necessarily  required  a  conversion 
into  money,  and  that  either  party  had  a  right  to  insist  on  a  sale  of  the 
whole. 


(1)  Sigorirney  v.  Munn,  7  Conn.  Rep.  324.  In  the  absence  of  all 
proof  to  the  contrary,  partners  will  be  presumed  to  be  equally  interest- 
ed in  the  partnership  funds.  Gould  v.  Gould,  6  Wend.  Rep.  263. 
The  San  Jose  Indiano,  2  Gallis'  Rep.  269. 


235  THE    CONSEQUENCES    OF    THE 

lution  must  necessarily,  under  such  circumstances,  be 
eventually  pronounced,  and  nothing,  therefore,  can  re- 
main but  to  wind  up  the  concern.  The  jurisdiction  of 
the  court  would  consequently,  in  many  cases,  be  ren- 
dered extremely  mischievous,  if  it  were  laid  down  as  an 
universal  rule,  that  the  trade,  whether  beneficial  or  not, 
should  be  carried  on  till  the  cause  was  finally  heard.  On 
fireneral  principles,  therefore,  it  is  the  practice,  in  the 
instance  of  a  trading  partnership  clearly  dissolved,  or 
where  the  right  to  a  dissolution  is  manifest,  at  once  to 
put  an  end  to  the  trade,  by  directing  a  sale  by  interlocu- 
tory order  on  motion,  where  that  measure  is  required 
by  the  evident  interest  of  the  parties.(id;)  In  a  late  case, 
where  it  was  provided  by  the  articles  that,  upon  the  ex- 
piration of  the  co-partnership,  the  stock  should  be 
divided,  received,  and  taken  by  the  partners  according 
to  their  respective  interests,  it  was  held,  that  such  a  pro- 
vision could  not  be  literally  carried  into  execution,  and 
therefore,  that  by  the  general  law  of  partnership,  the 
settlement  of  the  affairs  must  be  made  by  sale^  and  a 
division  of  the  produce.(a.-) 

The  joint  property  being  disposed  of,  the  joint  credi- 
tors have  the  primary  claim  upon  the  fund  constituted  by 
its  produce.  This  is  consonant  with  the  principle  qiii 
sentit  commodum  sentire  debet  et  onus  }■  as  the  partnership 
property  has  been  acquired  by  means  of  partnership 
debts,  it  ought  first  to  be  applied  in  discharge  of  them. 
It  is  also  for  the  sake  of  the  partners  themselves,  that 
the  joint  creditors  are  first  to  be  satisfied ;  because,  in 
in  taking  the  account  between  the  partners,  there  is  that 
equity  affecting  each,  that  he  shall  be  discharged  from 
■his  liability  in  respect  to  partnership  debts,  before  any 
division   of    the   funds,   liable   to    those    debts,    takes 

{to)  Crawshay  v.  Maule,  1  Swanst.  506.  523.  S.  C.  1.  J.  Wils. 
181.  In  Nerot  v.  Burnard,,2  Russ.  56.,  pending  an  appeal  against  a 
decree  declaring  a  partnership  dissolved,  and  directing  the  property  to 
be  sold,  and  an  account,  the  court  upon  motion  suspended  the  sale 
upon  the  terms  of  bringing  title  deeds  into  the  master's  office,  and 
giving  security  for  the  value  of  the  eftects. 

{x)  Cook  V.  Collingridge,  1  Jacob,  607. 


DISSOLUTION    Of    a    PARTNERSHIP.  236 

place  between  the  partners.(y)  (1)  ^Besides,  it  [*236] 
is  very  possible,  and  it  often  happens  in  fact, 
that  the  partners  have  different  interests  in  the  surplus, 
and  out  of  that,  in  order  to  the  administration  of  justice 
to  the  partners  themselves,  a  necessity  arises,  that  the 
partnership  debts  must  be  paid,  otherwise  the  surplus 
cannot  be  distributed  according  to  equity.(2')  Partner- 
ship effects,  therefore,  or  their  produce,  must  be  applied 
in  liquidation  of  the  outstanding  debts,  before  any  of  the 
partners  can  claim  any  thing  for  his  share  or  debt.(a)  (2) 
And  as  the  assignee  of  a  single  partner  must  claim 
through  the  medium  of  the  assignor,  and  can  be  in  no 
better  state  than  he  was,  it  follows  that  an  assignment 
by  one  partner  of  his  interest  in  the  joint  property  to 
secure  his  separate  debt,  must  continue  subject  to  the 
payment  of  joint  debts.(6)  (3)  Independently,  however, 
and  subject  to  the  rights  of  the  joint  creditors,  when  an 
account  is  taken  between  partners  after  a  determination 

(y)  Campbell  v.  Mullett,  2  Swanst.  574. 
(z1  Ex  parte  Ruffin,  6  Ves.  127. 

(a)  West  V.  Skip.  1  Ves.  sen.  456. 

[b)  Young  V.  Keighly,   15  Ves.  567;    and  see  the  judgment  of 
Lord  Mansfield,  in  Fox  v.  Hanbury,  Cowp.  445. 


(1)  fVodrop  V.  Ward,  3  Desaus.  Cha.  Rep.  203.  White  v.  Union 
Ins.  Company,  1  Nott  &  McCord's  Rep.  556.  Ridgehy  v.  Carey,  4 
Harr.  &  McHen.  Rep,  167.  See  McCullough  v.  DasliielVs  Adm.  1 
Harr.  &  Gill.  96.  Deveau  v.  Fowler,  2  Paige's  Cha.  Rep.  400. 
Wilder  v.  Keeler,  Egberts  v.  Wood,  3  Paige's  Cha.  Rep.  167,  518. 
Smith  V.  Barker,  1  Fairf.  Rep.  458. 

(2)  But  the  prior  right  of  a  partnership  creditor,  to  be  paid  out  of 
the  common  property,  in  preference  to  a  separate  creditor  of  either  of 
the  partners,  does  not  exist  in  the  case  of  a  dormant  partnership. 
French  v.  Chase,  6  Greenl.  Rep.  160.  Lord  v.  Baldwin,  6  Pick. 
Rep.  348. 

(3)  Where  two  persons  are  partners  in  carrying  on  of  a  trade,  and 
by  the  terms  of  their  partnership  one  finds  stock  and  the  other  does  the 
work,  and  each  is  entitled  to  a  proportion  of  the  proceeds  of  the  manu- 
factured articles,  and  the  working  partner  absconds,  the  other,  it  seems, 
is  entitled  to  take  possession  of  the  whole  stock  on  hand,  holding  the 
share  of  his  partner  subject  to  the  claims  of  his  creditors ;  but  if  the 
absconding  partner  relinquishes  his  interest  to  the  other  partner,  an 
actual  delivery  is  not  necessary  to  complete  the  transfer.  Boynton  v. 
Page,  13  Wend.  Rep.  425. 


236  THE    CONSEQUENCES    OF    THE 

of  the  partnership,  each  partner  is  entitled  to  be  allowed 
against  the  other  every  thing  he  has  advanced  or  brought 
in  as  a  partnership  transaction,  and  to  charge  his  co- 
partner in  the  account  with  what  he  has  failed  to  bring 
in,  and  with  what  he  has  abstracted  from  the  joint  fund 
beyond  his  just  proportion ;  and  nothing  will  be  consi- 
dered as  the  share  of  any  of  them,  but  that  proportion  of 
the  residue,  to  which  each,  on  a  balance  of  the  accounts 
so  taken,  may  be  ascertained  to  be  entitled.(c) 

We  will  now  inquire  what  are  the  consequences  result- 
ing from  a  partial  dissolution  of  a  partnership,  which 
may  be  considered  either  as  they  regard  the  retiring 
partner,  or  as  they  affect  the  remaining  partner.  On  the 
secession  of  one  partner  from  a  firm,  it  is,  generally 
speaking,  agreed,  that  he  shall  receive  a  sum   of  mo- 

ney(c?)  or  an  annuity,  proportioned  to  his  share 
[  *237  ]  in  the  *concern,  in  return  for  which,  he  makes 

over  to  the  partner,  who  intends  continuing  the 
trade,  whatever  interest  he  may  possess  in  the  joint  pro- 
perty. When  the  consideration  for  the  assignment  by 
the  retiring  partner  of  his  interest  in  the  concern  is  an 
annuity  to  be  paid  to  him,  we  have  before  seen(e)  that 
the  income  secured  must  not  arise  out  of  and  be  subject 
lo  the  fluctuations  of  the  profits  of  the  trade;  because,  if  it 
be  so,  all  the  substantial  enjoyment  of  a  partner  in  the 
profits  will  be  given ;  but  the  annuity  must  be  certain, 
and  be  payable  at  all  events,  and  its  amount  should  be 
regulated  by  a  reference  to  the  actual  bona  fide  value  of 

(c)  West  V.  Skip.  1  Ves.  sen.  242.  S.  C.  2  Swanst.  586.  Where 
a  partner  had,  during  his  continuance  in  the  firm,  carried  the  amount 
of  his  advances  to  his  private  credit,  without  deducting  the  property 
tax,  it  was  held  that,  after  his  retirement  from  the  partnership,  the 
continuing  partners  could  not,  after  a  long  lapse  of  time,  deduct  it,  es- 
pecially as  it  did  not  appear  that  they  had  ever  accounted  for  it  to 
government.  Parker  v.  Ramsbottom,  3  B.  &  C.  257.  S.  C.  5  D.  & 
R.  138. 

(rf)  An  assignment  by  a  retiring  partner  of  all  his  interest  in  the 
partnership  contracts  and  concern,  in  consideration  of  a  certain  sum  at 
which  his  interest  had  been  valued,  has  been  held  not  to  be  a  sale  of 
property  within  the-  act  requiring  an  ad  valorem  stamp.  Belcher  v. 
Sikes,  6  B.  &;  C.  234. 

(c)  See  ante,  p.  21. 


DISSOLUTION    OF    A    PARTNERSHIP.  237 

the  interest  which  the  retiring  partner  renounces.  In  a 
late  case  it  was  agreed,  that  the  continuing  partner 
should,  in  consideration  of  an  assignment  to  him  of  the 
partnership  property,  including  a  lease  of  the  premises 
on  which  the  business  was  carried  on,  secure  to  the  re- 
tiring partner,  the  payment  of  an  annuity  by  bond,  which 
was  conditioned  to  be  void  on  payment  of  the  annuity, 
"  or  in  case  lie  should,  at  any  time  after  the  expiration  of 
the  then  existing  lease,  be  dispossessed  of  and  compelled  to 
quit  the  premises  without  any  collusion,  contrivance,  act,  or 
default  of  his  own;'''*  the  continuing  partner  obtained  a 
renewal  of  the  lease,  and  afterwards  became  a  bankrupt, 
and  the  renewed  lease  passed  under  the  assignment  of 
his  estate ;  it  was  decided  that  this  was  not  such  an 
eviction  or  dispossession  as  was  contemplated  by  the 
agreement,  in  the  event  of  which  the  annuity  was  to 
cease.(/)  But  if  the  partners  cannot  arrive  at  any 
amicable  arrangement,  then,  as  in  the  case  of  a  total  dis- 
solution, the  partnership  effects  are  all  to  be  reduced  into 
money,  and,  after  discharging  all  the  demands  existing 
against  the  firm,  the  surplus  is  to  be  divided  amongst 
all  the  partners,  according  to  the  proportions  in  which 
they  may  be  respectively  and  severally  entitled.  If,  in- 
stead of  a  share  of  the  capital  or  its  profits,  there  is 
nothing  to  be  apportioned  but  a  loss,  the  retiring  partner 
necessarily  stands  in  the  same  situation  as  the  other 
partners,  and  cannot  set  up  any  claim  in  opposition  to 
real  creditors.  Upon  this  principle  it  has  been  held, 
that  an  agreement  by  which  one  partner  permitted  the 
other  (who  seceded  from  the  partnership  at  the  time  it 
was  insolvent)  to  withdraw  money  out  of  the  reach  of 
the  joint  creditors  was  fraudulent  and  invalid,  and  the 
retiring  partner  was  compelled  to  refund. (^)  But 
where  no  *fraud  is  intended  or  practised,  and  [  *238  ] 
the  dissolution  is  fairly  made  between  the  part- 

(f)  Holyland  v.  De  Mendez,  3  Meriv.  184. 

Ig)  Anderson  v.  Mallby,  4  Bro.  C.  C.  423.  S.  C.  2  Ves.  jim.  244. 
See  Parker  v.  Ramsbottom,  3  B.  <fe  C.  257.  In  Ex  parte  Carpenter, 
1  Mont.  &  M.  1,  where,  upon  the  retirement  of  one  partner,  the  con- 
tinuing partners  taking  the  concerns  in  its  actual  state,  undertook  by 
deed  to  indemnify  the  former,  it  being  then,  as  to  joint  effects,  insol- 


238  THE    CONSEqUENCES    OF    THE 

ners,  an  agreement  by  one  partner  to  give  to  the  retiring 
partner  a  sum  of  money  for  his  interest  in  the  concern, 
will  not  be  invalidated  by  the  circumstance  per  se,  of  the 
joint  effects  being  insufficient  to  pay  the  joint  debts.(A) 
And  on  a  dissolution,  two  or  more  partners  may  agree, 
that  what  was  before  the  joint  property  of  all  shall  be- 
come the  separate  property  of  one,  although  in  such 
cases,  the  question,  whether  that  which  had  been  joint 
has  become  separate  estate,  depends  upon  the  bona  fide 
of  the  transaction.  The  rights  of  the  creditors  are  in- 
disputable ;  their  equities  to  have  the  joint  effects  ap- 
plied in  liquidation  of  their  debts  must  be  worked  out 
through  the  medium  of  the  partners,  as  the  joint  credi- 
tors must  be  paid,  in  order  to  administer  justice  to  the 
partners  themselves.  While  they  remain  solvent,  and 
the  partnership  is  going  on,  the  creditor  has  no  equity 
against  the  effects  of  the  partnership.  He  may  bring  an 
action  against  the  partners,  and  get  judgment,  and  may 
execute  his  judgment  against  the  effects  of  the  partner- 
ship. But  when  he  has  got  them  into  his  hands,  he  has 
them  by  force  of  the  execution,  as  the  fruit  of  his  judg- 
ment ;  clearly  not  in  respect  of  any  interest  he  had  in 
the  partnership  effects  while  he  was  a  mere  creditor,  not 
seeking  to  substantiate  or  create  an  interest  by  suit. 
Having,  therefore,  no  lien  on  the  property,  the  joint  cre- 
ditors, where  notice  of  the  dissolution  is  given,  cannot 
prevent  the  partners  from  effectually  transferring  it  by 
bona  fide  alienation  ;  for  the  circumstance  of  its  having 
once  been  joint  property  does  not  render  it  such  for 
ever.(2)  If,  by  bona  fide  conveyance  one  of  the  part- 
ners becomes  a  new  purchaser,  and  is  put  into  pos- 
session, he  is,  to  all  intents  and  purposes, 
[  *239  J  the  owner,  *and  joint  creditors  cannot  follow 

vent ;  and  upon  the  death  of  one  and  bankruptcy  oi  the  other  continu- 
ing partner,  the  retiring  one  had  been  called  upon  to  pay ;  it  was  held 
that  the  permitting  the  one  to  retire  without  taking  from  him  the  pro- 
portion of  the  deficiency,  did  not  necessarily  make  the  deed  fraudulent 
as  against  the  remaining  partners. 
.    (h)  Ex  parte  Peake,  1  Madd.  346. 

\i)  JEx  parte  Ruffin,,  6  Ves.  127.  Ex  parte  Fell,  10  Ves.  347.  Ex 
parte  Williams,  11  Ves.  3.  Ex  parte  Rowlandson,  1  Rose,  416. 
Campbell  v.  Mullett,  2  Swanst.  575. 


DISSOLUTION    OF    A    PARTNERSHIP.  239 

the  property  into  his  hand3.(l)  Possession,  however, 
of  the  partnership  property  must  be  given  by  the  re- 
tiring to  the  remaining  partners,  according  to  the 
nature  of  the  contract ;  for  if  no  change  of  possession 
follow  the  agreement,  agreeably  to  the  contract,  the 
property,  as  respects  joint  creditors,  is  still  to  be  con- 
sidered as  partnership  property.(/t:)  If  the  court  were 
to  lay  down,  that  what  has,  at  any  time,  been  joint  pro- 
perty, should  always  remain  so,  the  consequence  w^ould 
be,  that  no  partnership  could  wind  up  its  affairs  ;  there- 
fore a  bona  fide  transmutation  of  the  property  is  under- 
stood to  be,  the  act  of  men  dealing  fairly  in  winding  up 
the  concern,  and  it  is  binding  upon  the  creditors.  Where, 
upon  a  dissolution  of  partnership,  it  was  agreed  that 
certain  articles  of  the  partnership  stock  should  become 
the  exclusive  property  of  one  of  the  partners,  and  that  a 
certain  fund  should  be  appropriated  to  the  payment  of 
the  debts,  and  that  fund  afterwards  proved  insufficient 
for  the  purpose.  Sir  John  Leach  held  that  the  other  part- 
ner had  no  lien  on  those  articles  in  respect  of  such  de- 
ficiency.(/)  It  may  here  be  remarked,  that  if  one  partner 
sells  his  share  in  the  partnership  business  to  his  co- 
partner, who  continues,  the  retiring  partner  does  not 
necessarily  dispose  of  the  good-will,  so  as  to  prevent  his 
carrying  on  the  same  business  in  the  immediate  neigh- 
bourhood ;  but  if  it  is  the  intention  of  the  parties  that 
the  good-will  should  be  included  in  the  sale,  it  must  be 
made  a  part  of  the  agreement,  and  the  retiring  partner 
must  be  bound  not  to  carry  on  the  business  any  longer, 
or  within  a  certain  distance  of  the  place  where  the  part- 
nership business  is  conducted.(m)     The  court  will  in  no 

{k)  Ex  parte  Harris,  1  Madd.  583. 

(Z)   Lingen  v.  Simpson,  1  Sim.  &;  Stu.  600. 

(m)  Kennedy  v.  Lee,  3  Meriv.  441.  In  the  case  of  Hardy  v.  Mar- 
tin, 1  Bro.  C.  C.  418.  n,  one  partner,  on  retiring  from  business,  gave  a 
bond  for  600/.  to  the  other,  not  to  carry  on  the  same  business  within 
certain  limits  ;  and,  after  a  verdict  at  law  for  the  penalty,  the  Court  of 


(1)  See  Poindexter  v.  Waddy,  6  Munf.  418,  and  consider  the  facts 
of  the  case,  and  opinion  of  the  Court,  without  regard  to  the  marginal 
abstracts. 

41 


239  THE  CONSEQUENCES  OF  THE 

case  interpose  by  injunction,  or  entertain  a  suit  upon  the 
mere  speculation  of  possible  injury ;  and  therefore  where 
upon  a  covenant,  in  articles  of  partnership  between  sur- 
geons, that  either  might  dissolve  it  at  the  end  of  seven 
years,  but  that  in  such  case  the  party  would  not  practice, 
except  as  a  physician,  under  a  heavy  penalty,  notice  of 
dissolution  having  been  given  and  an  intention  expressed 
by  the  party  giving  the  notice  of  his  continuing  the 
practice  of  a  surgeon,  a  demurrer  to  a  bill  for 
[  *240  ]  an  *injunction  filed  two  months  before  the  ex- 
piration of  the  partnership  was  allowed.(7?) 

A  partnership  may  be  dissolved  as  between  the  part- 
ners themselves,  and  still -continue  legally  to  subsist  as 
between  them  and  the  rest  of  the  world.  Since  credit 
is  given  to  the  whole  firm,  justice  requires  that  all  those 
who  belonged  to  it  should  be  bound,  while  it  is  supposed 
to  exist.  To  exempt  a  retiring  partner  from  this  con- 
tinued responsibility,  he  must  give  notice  that  he  is  no 
longer  a  partner,  and  to  such  as  may  be  considered  ap- 
prized of  his  secession,  he  will  not  be  answerable  for  the 
subsequent  acts  and  engagements  of  the  remaining  part- 
ners. The  object  of  a  partner,  on  his  retirement,  must 
therefore  be,  in  the  first  place,  to  effect  his  discharge 
from  debts  and  engagements  existing  at  the  time  of  the 
dissolution ;  and  in  the  second  place,  to  guard  himself 
against  responsibility  for  acts  or  engagements  to  be  done 
or  entered  into  by  his  co-partners  in  the  name  of  the 
partnership  firm.  In  what  manner  this  discharge  from 
liability,  both  to  present  and  future  demands,  is  to  be 
obtained,  we  will  separately  consider. 

Notwithstanding  a  dissolution,  the  retiring  as  well  as 
the  remaining  partners  continue  jointly  liable  to  answer 
all  debts  or  engagements  contracted  or  entered  into  by 
the  firm  during  the  existence  of  the  partnership.  The 
joint  creditors  may  proceed  against  all  the  partners ;  for 
their  agreements  to  dissolve  cannot  deprive  the  creditors 
of  their  right  of  applying  for  payment  to  those  who  are 

Chancery  granted  an  injunction  to  stay  execution,  and  directed  an  issue 
to  take  an  account  of  tlie  damage  actually  sustained. 

(n)  Coates  v.  Coates,  6  Madd.  287 ;  and  see  Glassington  v. 
Thwaites,  1  Sim.  &  Stu.  133. 


DISSOLUTION  OP  A  PARTNERSHIP.  240 

responsible  to  them.(l)    It  consequently  becomes  matter 
of  serious  importance  to  the  retiring  partner  effectually 
to  absolve  himself  from  the  existing  claims  upon  the  firm. 
In  the  absence  of  special  agreement,  it  has  been  stated(o) 
that  this  may  be  done  by  a  sale  of  the  joint  stock,  and 
the  application  of  its  produce  to  the  discharge  of  the 
joint  demands ;  and  upon  which  any  of  the  partners,  on 
a  dissolution,  has  a  right  to  insist.     But  in  the  instance 
of  a  partial   dissolution,  although  the   interest   of  the 
retiring  partner  may  be  transferred  to  the  other  upon 
very  various  terms,  and  through  the  medium  of  very 
different  stipulations,  yet  it  most   frequently  happens, 
that  in  consideration  of  an  assignment  by  the  retiring 
to  the  continuing  partner  of  his   interest  in   the  joint 
stock,  the  latter,  as  a  partial  recompense,  assumes  the 
liquidation   of  the  debts,   and  indemnifies  the 
retiring  ^partner  against  any  claims  that  may  [  *241  ] 
be  made  upon  him  in  respect  of  them.  This  as- 
sumption by  the  continuing  partner  of  separate  respon- 
sibility can,  as  to  the  creditors  of  the  firm,  be  considered 
only  as  a  proposal  that  he  is  willing  to  become  their  sole 
debtor,  and  the  joint  creditor  cannot  sustain  an  action 
at  law  against  him  alone  upon  the  mere  naked  effect  of 
such  an  engagement.     Neither  can  such  a  creditor,  in 
the  event  of  the  bankruptcy  of  the  continuing  partner, 
sustain  a  claim  of  proof  against  his  separate  estate,  un- 
less before  the  bankruptcy  he   accede  to  the  proposal 
held  out,  and  accept  him  as  his  separate  debtor;  be- 
cause, however  great  the  hardship  upon  the  creditor  may 
be,  that  the  joint  stock,  to  which  he  may  have  especially 
given  credit,  should,  by  the  dealing  of  his  debtors  with 
each  other,  be  converted  into  separate  estate,  yet  the 
legal  principal  is,  that  it  becomes  so  converted  by  the 
simple  force  of  the  contract,  and  this  legal  principle  is 
too  strong  to  be  controlled  in  equity,  by  imposing  the 
obligation  of  discharging  the  joint  debts  as  the  condition 

(o)  See  ante,  p.  234. 


(1)    IVhiling  el  al.v.  Farrandet  al.    1  Conn.  Rep.  60.     Forest  y. 
Wain  et  al.  4  Yeates,  337. 


241  THE  CONSEQUENCES  OF  THE 

of  the.  con  version. (jo)  However  the  covenant  of  the 
continuing  partner,  to  pay  the  joint  debts,  where  it  has 
been  recognised  by  the  creditor,  has,  in  many  instances, 
as  between  the  latter  and  the  retiring  partner,  given  rise 
to  questions,  as  to  what  shall  operate  his  discharge  ; 
but,  with  a  few  exceptions,  to  which  we  will  shortly  ad- 
vert, the  result  seems  to  be,  that  nothing  but  actual  sa- 
tisfaction can  be  considered  as  working  a  complete  and 
perfect  exoneration.  In  a  late  case,(i5r)  one  of  three 
partners,  after  a  dissolution  of  partnership,  undertook, 
by  deed,  to  pay  a  particular  partnership  debt  on  two 
bills  of  exchange,  and  that  was  communicated  to  the 
holder,  who  consented  to  take  the  separate  notes  of  one 
partner  for  the  amount,  but  strictly  reserved  his  right  of 
action  against  all  the  three,  and  retained  possession  of 
the  original  bills ;  the  separate  notes  having  proved  un- 
productive, it  was  determined  that  the  creditor  might 
still  resort  to  his  remedy  against  the  other  partners,  and 
that  the  taking,  under  such  circumstances,  the  separate 
notes,  and  even  afterwards  renewing  them  several  times 
successively,  did  not  amount  to  satisfaction  of  the  joint 

debt.  So  in  a  case(r)  still  more  recent,  where, 
[  *242  ]  on  a  dissolution,  it  *was  agreed  between  two 

partners,  that  one  should  take  upon  himself  to 
discharge  a  debt  due  to  a  particular  creditor,  who  was 
informed  of  the  agreement,  and  expressly  undertook  to 
exonerate  the  other  partner  from  all  responsibility ;  yet, 
as  the  debt  was  not  satisfied  by  the  one,  nor  any  fresh 
security  given,  it  was  decided  by  the  Court  of  King's 
Bench  that  the  promise  of  the  creditor  was  without  con- 
sideration, and  did  not  constitute  any  defence  to  an 
action  brought  by  him  against  both  partners.(l)     And 

(p)  ^a^joar/e  Freeman,  Buck.  471.  JEx  parte  Fry,  1  Glyn&  James, 
96.  But  see  Mont.  Dig.  of  New  Decis.  in  Bank.  2d  part,  p.  71 ;  and 
3d  part,  p.  126. 

(q)  Bedford  v.  Deakin,  2  B.  &  A.  210.  S.  C.  2  Stark.  N.  P.  C.  178. 

(r)    Lodge  v.  Dicas,  3  B.  &  A.  611. 


(I)  Smith  et  al,  v.  Rogers  et  al.  17  Johns.  Rep.  340.  See  Blew  v. 
ff^yatt,  5  Car.  &  Payne,  397. 


DISSOLUTION    OF    A    PARTNERSHIP.  242 

where  one  of  three  partners  retired,  and  notice  was 
given  to  a  creditor  of  the  firm  that  the  remaining  part- 
ners had  assumed  the  funds,  and  would  discharge  the 
partnership  debts,  the  creditor  assented  to  this  agree- 
ment, and  transferred  the  debts  due  from  the  old  firm  to 
the  credit  of  the  new  firm,  and  afterwards  drew  on  the 
new  firm  for  a  part  of  his  balance,  which  was  paid;  but 
the  new  firm  subsequently  becoming  insolvent,  he  brought 
an  action  for  the  remainder  against  all  the  members  of 
the  old  firm ;  it  was  held,  that  the  retiring  partner  was 
liable  for  all  the  debts  incurred  before  the  dissolution  of 
the  partnership.(s)  In  like  manner,  where  a  firm  of  four 
partners  were  indebted  on  a  dishonoured  bill  of  ex- 
change, and  having  afterwards  dissolved  the  partnership, 
a  new  firm  was  formed  of  three  of  them,  and  the  holder 
of  the  bill  indorsed  it  over  to  the  latter  firm,  in  order,  if 
possible,  to  obtain  payment  of  it;  and  whilst  the  bill  was 
in  their  possession,  the  three  settled  their  accounts  with 
the  fourth  partner,  saying  that  the  bill  had  been  satisfied 
by  them,  but  the  bill  itself  was  not  produced  to  or  seen 
by  the  fourth  partner,  at  the  time  of  such  settlement :  it 
was  held  that  this  was  no  defence  to  the  fourth  in  an 
action  by  the  holder  against  all  the  partners,  the  bill  not 
having  been  in  fact  satisfied  by  the  persons  to  whom  it 
had  been  indorsed  and  handed  over.(^)(l)  On  the  same 
principle  the  Court  of  Exchequer  has  held  that  a  person 
depositing  money  with  bankers,  and  taking  their  ac- 
countable receipts,  does  not,  by  continuing  to  leave  his 
money  in  the  bank  after  a  dissolution  of  the  original 
firm,  and  the  constitution  of  a  new  one,  which  consists 
of  some  of  the  members  of  the  old  bank  and  other  persons, 
discharge  the  partners  who  have  seceded,  although  he  re- 
ceives interest  regularly  from  the  new  firm,  gives  them 
no  notice,  and  continues  to  transact  business  with  them 
in  the  common  course,  and  that  for  a  period 
*of  four  years,  and  until  they  become  insol-  [*243] 

(s)    David  V.  Ellice,  5  B.  &  C.  196.     S.  C.  7  D.  &  R.  690. 
{t)    Featherstone  v.  Hunt,  1  B.  &  C.  113. 


(I)  See  Arnold  v.  Camp,  12  Johns.  Rep.  409. 


243  THE    CONSEQ.UENCES    OF    THE 

vent.(w)  That  a  similar  rule  prevails  in  equity  is 
strongly  illustrated  by  a  case(?;)  which  was  brought  un- 
der the  consideration  of  Lord  Rosslyn.  There  a  de- 
visee, in  trust  for  the  testator's  executrix  and  her  children, 
was  a  member  of  a  firm,  which  was  indebted  to  the  tes- 
tator, at  his  death,  both  on  bond  and  on  simple  contract; 
and,  after  the  testator's  death,  the  other  partners  of  the 
firm,  with  the  privity  of  the  executrix,  gave  to  the  de- 
visee a  bond  for  the  simple  contract  debt,  in  trust  for  the 
uses  of  the  will;  and  the  executrix  having  gone  abroad, 
the  effects  of  the  testator  were,  during  her  absence, 
managed  by  the  devisee.  The  firm,  of  which  the  devi- 
see was  a  member,  was  afterwards  dissolved  by  the  se- 
cession ofoneof  the  partners,  and,  both  the  firm  and  the 
devisee  being  solvent,  it  was  agreed,  at  a  meeting  of 
creditors,  that  the  debts  of  the  old  firm  should  be  secu- 
red by  the  bonds  of  the  remaining  members,  of  whom 
one  was  the  devisee,  and  he,  in  consequence  of  such 
agreement,  delivered  up,  without  any  communication  with 
the  executrix,  the  bonds  for  payment  of  the  debts  due 
to  the  testator's  estate,  which  were  cancelled;  and  Lord 
Rosslyn,  on  a  bill  being  filed,  considered  that  the  out- 
going partner  was  not  released  from  his  liability  upon 
the  cancelled  bond.  But  although,  as  partners  are  joint- 
ly liable  for  all  debts  due  from  the  firm,  no  arrangement 
between  themselves  can  vary  the  right  of  the  creditor, 
yet  that  right  may  be  destroyed  by  his  expressly  con- 
senting to  accept  of  the  separate  security  of  one  partner, 
in  discharge  of  and  in  satisfaction  of  the  joint  debt. 
Therefore,  if  a  partnership  debt  is  paid  by  a  bill  of  ex- 
change, which,  when  due,  and  after  notice  of  the  disso- 
lution, is  renewed  by  the  creditor's  taking  the  separate 
bill  of  the  remaining  partner,  the  retiring  partner  is  dis- 


(w)  Gough  V.  Davies,  4  Price,  200.  It  seems  that  the  old  firm  would 
continue  liable,  although  the  old  debt  was  carried,  with  the  privity  of 
the  customer,  into  the  books  of  the  new  firm,  and  placed  as  an  item  in 
their  account  to  the  credit  of  the  customer,  Id.  Ibid. ;  and  see  Sleech's 
case,  1  Meriv.  563. 

{y )  Dickenson  v.  Lockyer,  4  Ves.  36;  and  see  Heath  v.  Percival, 
1  P.  Wms.  682. 


DISSOLUTION    OF    A    PARTNERSHIP.  243 

charged.(z^;)  (1)  And  if  the  creditor,  by  his  conduct  in 
taking  the  separate  security  of  one  partner,  induce  the 
outgoing  partner  to  allow  the  remaining  partner  to  re- 
ceive monies,  which  otherwise  he  would  have  prevented, 
it  seems  that  the  joint  ^liability  is  extinguish- 
ed.(x)  The  liability  of  a  retiring  partner  for  a  [  *244  ] 
debt  due  from  the  firm  at  the  time  of  his  seces- 
sion may  likewise  be  destroyed,  if  the  creditor  after- 
wards continue  his  dealings  with  the  remaining  partner, 
and  in  the  course  of  them,  payments  are  made  by  the 
latter  to  the  creditor,  without  appropriation  equal  to  or 
exceeding  the  amount  of  the  debt  due  at  the  dissolution.(2) 
In  such  a  case,  the  law  of  England,  borrowing  the  rule 
from  the  civil  law,  declares  that,  in  the  absence  of  ap- 
propriation, in  the  first  place  by  the  debtor,  or  by  the 
creditor  in  the  second,  the  payment  shall  be  ascribed  to 
that  debt  which  is  the  most  burthensome,  and  if  all  are 
equally  burthensome,  to  that  which  is  the  oldest  in  point 
of  time  and  standing.(2/)  (3)     Thus  where,  after  the  re- 

{w)  Evans  v.  Drummond,  4  Esp.  N.  P.  C,  89.  See  also  Paterson 
V.  Zachariah,  1  Stark.  N.  P.  C.  71. 

ix)  Reed  v.  White,  5  Esp.  N.  P.  C.  122.  See  Robinson  v.  Read, 
9  B.  &  C.  449.  In  Heath  v.  Percival,  1  P.  Wms,  682,  where  two 
partners  in  a  Goldsmith's  trade,  being  bound  in  a  bond  to  J.  S.,  dis- 
solved the  partnership  and  divided  the  stock,  and  the  obligee,  after  the 
dissolution  applied  to  the  partner  continuing  the  business,  for  pay- 
ment of  the  bond,  but  subsequently  consented  to  let  the  money  remain 
on  that  partner's  agreeing  to  pay  an  increased  rate  of  interest,  it  was 
held  by  Lord  Macclesfield  that  the  changing  the  interest  did  not  alter 
the  security,  as  far  as  regarded  the  principal  sum  and  the  interest  ori- 
ginally reserved  ;  for  that  the  bond  still  continued  the  bond  of  both,  and 
that  the  retiring  partner,  after  the  lapse  of  a  great  number  of  years,  and 
after  the  other  partner  had  become  bankrupt,  was  liable  upon  the  bond. 
In  this  case  public  notice  had  been  given  to  all  the  joint  creditors,  that 
they  were  either  to  receive  their  money,  or  to  look  upon  the  continuing 
partner  as  their  pay-master ;  but  the  court  determined  that  such  a  no- 
tice, being  res  inter  alios  acta,  could  not  be  binding  upon  the  obligee, 

(j/)  Sec  the  elaborate  judgment  of  Sir  TV.  Grant,  in  Clayton's  case, 
1  Meriv.  604.     See  also  Bo'denham  v.  Purchas,  2  B.  &  A.  39.     Sim- 

(IJ  See  Harris  et  al.  v.  Lindsay,  4  Wash.  C.  C.  Rep.  98.  271. 

(2)  As  to  the  dealing  and  acts  by  which  a  retiring  partner  will  be 
discharged.    Bank  of  Wilmington  v.  Almond  et  al.  1  Whart.  Rep.  169. 

(3)  See  Cremer  v.  Higginson  et  al.  1  Mason's  Rep.  324.  Sneed 
V.  Wiester,  2  Marsh.  Rep.  288.     Bacon  v.  Brown,  1  Bibb's  Rep.  334. 


244  THE    CONSEQUENCES    OF    THE 

tirement  of  a  partner,  the  creditor  joins  the  transactions 
of  the  old  and  new  firm  in  one  entire  account,  the  pay- 
ments made  from  time  to  time  by  the  continuing  partner 
must  be  applied  to  the  old  deht.\z)  And,  where  an  in- 
dividual kept  a  banking  account  with  an  army  agent,  who 
afterwards,  without  the  knowledge  of  his  customer,  ad- 
mitted a  partner  for  a  limited  period,  at  the  expiration  of 
which  he  retired ;  and  the  account  being  kept  as  between 
the  individual  and  the  army  agent,  the  latter  subsequent- 
ly became  bankrupt;  it  was  decided  that  pay- 
[  *245  j  ments  made  by  the  bankrupt  *to  his  customer,  af- 
ter the  expiration  of  the  partnership,  not  having 
been  appropriated  by  either  party  at  the  time  to  the  dis- 
charge of  any  particular  debt,  the  retiring  partner,  ac- 
cording to  the  principle  of  law  regulating  such  payments, 
might  consider  them  as  having  been  made  in  reduction 
of  the  balance  due  at  the  termination  of  the  partnership, 
and  that  he  was  not  accountable  for  any  sums  received 
by  his  co-partner  on  account  of  his  customer  after  the 
dissolution. (a)(1)  So,  in  a  previous  case,(6)  where  the 
plaintiffs  had  dealt  for  a  length  of  time  with  two  part- 
ners, not  knowing  that,  during  a  part  of  the  time,  they 
had  a  third  partner,  and  had  furnished  them  with  goods 
and  received  payments  on  account  generally ;  and  before 
the  time  when  the  secret  tri-partnership  was  dissolved, 
goods  had  been  furnished,  to  cover  which,  bills  had  been 

son  V.  Ingham,  2  B.  &  C.  65.  Simson  v.  Cooke,  1  Bingh.  452.  Al- 
though the  rule  is,  that  when  money  is  paid  generally  it  ought  to  be 
applied  to  the  first  items  in  the  account,  yet  when  there  are  distinct 
demands,  one  against  persons  in  partnership,  and  another  against  one 
of  the  partners  only,  if  the  money  paid  be  the  money  of  the  partners, 
the  creditor  is  not  at  liberty  to  apply  it  to  the  payment  of  the  debt  of 
the  individual.     Thompson  v.  Brown,  1  Mood.  &  Malk.  N.  C.  P.  40. 

(z)  Simson  v.  Ingham,  2  B.  &  C.  65. 

(a)  Brooke  v.  Enderby,  4  B.  Moore,  501.  S.  C.  2  Brod.  &  Bingh. 
70.  (b)  Newmarch  v.  Clay,  14  East,  240. 


(1)  Fairchild  v.  Holly,  10  Conn.  Rep.  175.  See  also  as  to  the  right  of 
a  creditor  and  one  partner  to  apply  partnership  funds  misapplied  by  an- 
other member  of  the  firm  to  the  payment  of  his  individual  debt  due  to  the 
same  creditor,  to  the  payment  of  the  debt  due  by  ihe  firm,  Campbell  v. 
Matthews,  6  Wend.  Rep.  557, 


DISSOLUTION    OF    A    PARTNERSHIP.  245 

paid  to  the  plaintiffs  by  the  two  ostensible  partners, 
which  were  dishonoured  after  the  secret  dissolution  of 
the  tri-partnership,  and  then  other  goods  were  furnished 
as  before;  yet  as  the  dishonoured  bills  were  afterwards 
dehvered  up  by  the  plaintiffs  upon  the  receipt  of  subse- 
quent good  bills,  which  latter  were  more  than  sufficient 
to  cover  the  debts  of  the  tri-partnership,  though  not  to 
cover,  in  addition,  the  goods  furnished  after  the  dissolu- 
tion of  it,  it  was  held,  that  such  delivering  up  of  the  old 
dishonoured  bills,  upon  receipt  of  the  new  good  bills,  was 
evidence  of  a  particular  appropriation  of  such  new  bills, 
in  payment  and  discharge  of  the  old  debt,  of  which  the 
secret  third  partner  might  avail  himself  in  an  action  on 
the  case  for  goods  sold  and  delivered,  brought  against 
him  jointly  with  the  other  two  partners. 

When  the  retiring  partner  leaves  a  sufficiency  in  the 
hands  of  the  remaining  partner  to  discharge  the  joint 
demands,  and  has  sufficient  confidence  in  him  to  trust  to 
his  making  the  intended  application  of  it,  he  generally 
takes  care  to  provide  himself  with  an  express  indemnity 
against  claims  that  may,  under  any  contingency,  be 
made  upon  him.  Such  an  indemnity  is  usually  given  in 
the  shape  of  a  covenant  contained  in  the  deed  of  disso- 
lution, whereby  the  one  partner,  in  consideration  of  his 
being  allowed  to  receive  all  the  partnership  credits, 
covenants  expressly  to  pay  all  the  partnership  debts, 
and  for  the  violation  of  which  cnijagcmdit  the  law 
has  furnished  the  covenantee  with  a  remedy  by  ac- 
tion upon  the  covenant.(l)      An  express  covenant  is. 


(1)  Where  one  of  three  co-partners  took  an  assignment  of  the  stock 
and  credits  of  the  co-partnership,  and  contracted  to  pay  all  debts  due 
from  the  co-partnership,  it  was  held,  that  ho  was  liable  for  a  debt  due 
from  the  co-partnership  to  one  of  the  other  co-partners.  Hobart  v. 
Hoivard,  9  Mass.  Rep.  301.  In  Pcnnsyhania,  where  a  bond  with 
surety  was  given  upon  the  dissolution  of  a  partnership,  by  one  partner, 
(who  received  all  the  funds,  and  assumed  the  payment  of  all  the  debts 
and  engagements  of  the  firm,)  to  the  other,  conditioned  well  and  faith- 
fully to  pay  all  the  partnership  debts  within  twelve  months,  it  was  held, 
that  such  bond  might  be  assigned  to  trustees  for  the  benefit  of  the  cre- 
ditors of  the  firm,  and  might  be  well  sued,  in  the  name  of  the  partner  to 
whom  it  was  given,  for  such  use.  Kerr  v.  Haivthorne  et  al.  4  Yeates, 
170.     See  Waddington  v.  Vredenbergh,  2  Johns.  Ca.  227.     The  fol- 

42 


246  THE    CONSEQUENCES    OF    THE 

[  *246  ]  *under  such  circumstances,  the  most  advisable  to 
procure,  since  being  positive  in  its  nature  it 
leaves  no  room  for  subsequent  altercation  or  dispute; 
but  where,  from  the  whole  of  the  deed  taken  together, 
or  from  any  form  of  expression  in  any  part  of  it,  an  in- 
tention is  apparent  that  the  party  should  be  bound,  a 
covenant  may  be  implied;  and  therefore  if  a  court,  look- 
ing at  the  whole  of  the  instrument,  finds  from  its  lan- 
guage that  it  contains  a  clear  agreement  to  do  any  act, 
whether  in  the  way  of  covenant,  provision,  or  even 
exception,  then,  though  it  be  not  technically  couched  in 
the  form  of  a  covenant,  it  is  clear  that  an  action  of 
covenant  may  be  maintained. (c)  Thus,  in  a  late  case,(c?) 
it  appeared  that  by  indenture  between  A  of  the  first  part, 
B  of  the  second  part,  and  C  of  the  third  part,  it  was 
agreed  that  A  should  retire  from  business,  and  B  and  C 
become  partners ;  that  the  capital  employed  should  be 
36,000/.,  24,000/.  of  which  A  should  advance  for  B,  and 
the  remaining  12,000/.  was  to  be  advanced  by  C.  The 
deed  then  proceeded,  "And  whereas  an  account  of  all 
the  debts  and  credits  of  A  in  his  business  of  general 
merchant  has  been  this  day  taken,  and  the  balance  in 
his  favour  amounts  to  38,033/. ;  and  whereas  it  has  been 
agreed  by  and  between  A,  B,  and  C,  that  the  whole  of  the 
said  debts  and  credits  of  A  shall  be  received  and  paid  by 

(c)  Stevenson's  case,  1  Leon.  324.     HoUis  v.  Carr,  2  Mod.  87. 
\d)  Saltoun  v  Houstoun,  1  Bingh.  433. 


lowing  decision  took  place  in  Tennessee.  A.  and  B.  were  merchants 
and  partners  in  trade  in  the  state  of  Maryland,  and  there  agreed  to  dis- 
solve partnership,  and  upon  the  dissolution  B.  was  to  have  all  the  debts 
and  effects  belonging  to  the  firm,  and  he  engaged  to  indemnify  A.  against 
the  debts  due  from  it,  and  to  pay  him  a  certain  sum.  A.,  subsequent 
to  the  dissolution,  died.  B.  entered  into  partnership  with  C.  and  in 
the  course  of  their  business,  debts  became  due  to  them  in  Tennessee, 
after  which  the  firm  of  B.  &l  C.  became  insolvent,  the  debts  due  from 
the  firm  of  A.  &  B.  being  unpaid.  On  a  bill  by  the  representatives  of 
A.  stating  the  foregoing  facts,  and  that  they  were  apprehensive  of  being 
subjected  to  the  payment  of  the  debts  due  from  the  firm  of  A.  and  B. 
the  debtors  of  B.  and  C.  in  Tennessee  were  enjoined  from  paying  them 
a  moiety  of  the  debts,  being  B.'s  proportion  thereof.  Davis'  Ex.  v. 
TuUon,  1  Overt.  Rep.  121. 


DISSOLUTION    OF    A    PARTNERSHIP.  246 

B  and  C,  and  that  the  balance  of  38,033/.  shall  be  ac- 
counted for  and  paid  by  them  in  manner  hereinafter 
mentioned ;  and  that  for  the  better  enabling  them  to  call 
in,  collect,  and  receive  such  credits.  A,  by  an  indenture 
of  assignment  bearing  even  date  with  these  presents,  hath 
assigned  the  same  to  B  and  C :  Now  this  indenture  fur- 
ther witnesseth  that  it  is  agreed  that  in  consideration  of 
12,000/.  paid  to  A  by  C  as  his  share  of  the  capital,  and 
for  raising  24,000/.  the  proportion  of  A  of  the  capital, 
the  sum  of  36,000/.  part  of  the  38,033/.  shall  be  retained 
and  kept  by  B  and  C  as  their  capital  and  joint  stock,  and 
shall  belong  to  them  in  the  following  proportions :  viz. 
24,000/.  thereof  to  B,  and  12,000/.  thereof  to  C,  and  the 
remaining  2,033/.  shall  be  paid  to  A  by  instalments  at  six, 
twelve,  and  eighteen  months;  and  in  case  any  of  the  debts 
assigned  shall  prove  bad,  the  loss  shall  be  borne  by  B  and 
C." "  It  was  held  that  this  deed  contained  that  which 
amounted  to  a  covenant  by  B  and  C  to  pay  the  debts  due 
from  A  in  his  business  at  the  date  of  the  indenture. 
*And  where  a  partner  had  seceded  from  a  part-  [  *247  ] 
nership  under  an  express  indemnity  against  any 
claims  in  respect  of  the  partnership,  and  had  afterwards, 
by  the  sentence  of  a  foreign  court,  been  compelled  to 
pay  a  sum  of  money  for  customs  imposed  by  the  revenue 
laws  of  the  country,  the  Court  of  Chancery  ordered  the 
money  to  be  repaid  to  him,  and  would  not  investigate 
the  merits  of  the  original  claim,  on  the  ground  that  a 
foreign  judgment  is  not  examinable  by  an  English 
court.(e)(l)  So  where  the  defendant  entered  into  a 
covenant  to  indemnify  the  plaintiff  from  all  debts  due 
from  a  late  partnership  subsisting  between  the  plaintiff, 
the  defendant,  and  a  third  person,  and  from  all  suits  on 

(e)  Gold  V.  Canham,  Lord  Nottingham's  MS.  2  Swanst.  325.     S. 
C.  1  Ca.  inCha.  311. 


(1)  A  partner  having  withdrawn  from  a  mercantile  company,  and 
being  afterwards  erroneously  included  in  a  suit  against  a  new  company 
formed' by  the  other  partners,  may  be  relieved  in  equity  against  a  judg- 
ment therein  obtained,  upon  the  ground  that  one  of  the  company  pre- 
vented his  making  defence  at  law,  by  assuring  him  the  matter  should 
be  adjusted.     Lee  v.  Baird  et  al.  4  Hen.  &  Munf.  453. 


1247  THE    CONSEQUENCES    OF    THE 

account  of  non-payment,  it  was  determined  that  proof 
on  the  part  of  the  plaintiff,  that  proceedings  had  been 
instituted  in  a  foreign  court  against  the  late  partners, 
for  the  recovery  of  a  partnership  debt,  and  that  a  decree 
passed  against  them  for  want  of  an  answer  (in  conse- 
quence of  which  a  sequestration  issued  against  the  estate 
of  the  plaintiff,  and  he  was  obliged  to  pay  the  debt)  was 
conclusive  evidence  in  an  action  on  the  covenant  against 
the  defendant,  who  was  a  party  to  the  foreign  suit,  and 
who,  having  notice,  ought  to  have  appeared  and  made 
his  defence,  and  that  the  defendant  was' not  at  hberty 
to  show  that  the  proceedings  were  erroneous.(/)  But 
as  the  object  of  a  covenant  of  indemnity  can  only  be 
that  of  protecting  the  partner,  in  whose  favour  it  is 
made,  from  demands  substantiated  to  be  just,  it  follows 
that,  to  sustain  an  action  for  a  breach  of  such  a  cove- 
nant, it  must  be  shown,  that  the  demand,  in  respect  of 
which  the  breach  is  alleged  to  have  been  committed,  was 
a  debt  actually  contracted  either  during  the  partnership, 
or  subsequently  to  its  dissolution.  Thus  where,  on  the 
dissolution  of  a  partnership  between  A  and  B,  A  cove- 
nanted to  leave  a  sum  of  money  in  a  banker's  hands 
until  a  stated  period  as  a  security  against  payment  of 
any  demands  which  might  be  made  upon  him  in  respect 
of  debts  contracted  by  B  on  the  credit  of  the  partnership, 
which  sum  was  after  the  stipulated  time  to  be  paid  over 
to  B,  subject  to  such  claims  as  might  have  been  made. 
B  having  commenced  an  action  against  A  on  his  cove- 
nant, assigning  as  a  breach,  that  although  no  demand 
had  been  made  upon  him  he  had  prevented  B  from  re- 
ceiving the  money,  the  Court  of  Common  Pleas 
[  *248  ]  held  'that  it  was  not  sufficient  for  A  in  his  plea 
to  allege  that  a  demand  had  been  made  upon 
him  in  respect  of  a  debt,  as  being  a  debt  contracted  by 
B,  without  showing  that  the  debt  was  actually  so  con- 
tracted.("■) 

The  next  consideration  for  an  outgoing  partner  upon 
a  dissolution  of  the  partnership,  is  to  protect  himself 

(/)  Tarleton  v.  Tarleton,  4  Mau.  &  Sehv.  21.  Molony  v.  Gibbons, 
2Campb.  502.' 

{g)  Want  V.  Reece,  1  Bingh.  18.     S.  C.  7  B.  Moore,  244. 


DISSOLUTION    OF    A    PARTNERSHIP.  248 

against  liability  for  future  debts  to  be  contracted  by  the 
house.     To  create  a  legal  obligation,  as  partner,  it  is 
not  necessary  in  fact,  or  in  law,  that  the  partnership 
should  be  still  continuing.     The  legal  obligation  may 
arise  from  the  acts  of  the  party  at  one  time,  and  his 
forbearance  at  another  time.(/i)     If  a  partner,  on  his 
retirement  from  a  partnership,  neglect  to  notify  its  dis- 
solution to  the  world,  he  is  guilty  of  a  delusion  and  as 
he  thereby  induces  strangers  to  believe  that  the  partner- 
ship is  continuing,  he  must  abide  by  the  consequences 
resulting  solely  from  his  own  negligent  imprudence.(i) 
It  has  therefore  been  held  that  a  firm  may  be  bound 
after  the  dissolution  of  a  partnership  by  a  contract  made 
by  one  partner,  in  the  name  of  the  firm,  with  a  person 
who  contracted  on  the  faith  of  the  partnership,  and  had 
not  notice  of  the  dissolution. (A;)  (1)     And  the  principle 
upon  which  the  responsibility  of  the  retiring  partner 
proceeds,  being  his  negligent  conduct  in  forbearing  to 
give  notice,  and  the  consequent  ignorance  of  the  world 
of  the  fact  of  a  dissolution  having  taken  place,  he  will 
be  liable  for  the  engagements  of  the  other  partners,  en- 
tered into  in  the  name  of  the  firm,  even  with  a  party 
whose  dealings  began  subsequently  to  the  dissolution  of 

(A)  Per  Mbott,  C.  J.,  Goode  v.  Harrison,  5  B.  &  A.  157. 

(i)  Where  a  partnership  is  terminated  by  the  death  of  one  of  its 
members,  it  seems  that  notice  of  that  event  is  not  necessary  to  protect 
the  estate  of  the  deceased  from  future  liability.  VuUiamy  v.  Noble,  3 
Meriv.  619.  And  the  liability  of  a  partner,  who  notoriously  withdraws 
his  name  from  a  firm,  is  not  continued  by  the  circumstance  that  the 
deed  by  which  he  has  professed  to  assign  his  share  is  void  for  a  techni- 
cal informality.     Mclver  v.  Humble,  16  East,  174. 

{k)  Godfrey  v.  TurnbuU,  1  Esp.  N.  P.  C.  371.  Osborn  v.  Harper, 
5  East,  225.  Goode  v.  Harrison,  supra.  In  Fox  v.  Hanbury,  Cowp. 
445.,  Lord  Mansfield  said,  "  If  partners  dissolve  their  partnership, 
they  who  deal  with  either,  without  notice  of  such  dissolution,  have  a 
right  against  both." 


(1)  Price  Sf  Co.  v.  Towsey,  3  Littell's  Rep.  423.  Ketcham  et  a/. 
V.  Clarke,  6  Johns.  Rep.  144.  Thommon  v.  Kalbach,  12  Serg.  & 
Ravvle,  238.  Lc  Roy  et  al.  v.  Johnson,  2  Peters'  Sup.  C.  Rep.  186. 
Brishan  v.  Boyd,  4  Paige's  Cha.  Rep.  17. 


248  THE    CONSEQUENCES   OF    THE 

the  partnership.(/).(l)  It  may  be  inferred  from  what  has 
been  stated,  that,  to  exempt  the  outgoing  partner  from 
future  Habihty,  notice  of  the  dissolution  of  the  partner- 
ship should  be  sufficiently  promulgated  to  the  world. 
This  may  be  done  either  by  an  actual  and  express  notice, 

or  by  one  which  is  constructive  and  implied. 
[  *249  ]  *Where  notice  of  the  dissolution  is  expressly 

given  to  all  the  persons  with  whom  the  ex-part- 
ners had  dealings  in  partnership  (and  generally  speaking 
this  form  of  notice  is  the  most  advisable  and  proper,)  (m) 
the  joint  responsiblity  for  subsequent  acts  of  individual 
partners  is  terminated.  Notice  of  a  dissolution  is,  in 
legal  import,  and  effect,  notice  of  the  want  of  authority 
of  any  single  partner  to  bind  the  firm  by  his  separate 
act ;  the  communication  of  such  a  notice  operates,  there- 
fore, as  a  determination  of  continued  liability.  Even 
where  a  plaintiff  was  privy  to  an  intention  of  partners  to 
dissolve  their  partnership,  which  was  in  the  course  of 
execution,  it  was  held  that,  in  an  action  founded  upon  a 
supposed  subsequent  partnership  transaction,  the  plaintiff 
must  show  that  the  intention  was  abandoned.(w)  But 
express  notice  of  a  dissolution  to  be  available  must  be 
given  to  every  person  entitled  to  it ;  for  a  communication 
of  the  fact  to  one  may  be  rendered  nugatory  and  in- 
effectual by  a  neglect  to  communicate  it  to  another, 
where  the  rights  of  the  two  arise  out  of  the  same  trans- 
action. Therefore,  if  the  plaintiff,  in  an  action  on  a  bill 
of  exchange  accepted  by  one  of  several  partners  in  the 
name  of  the  firm,  be  an  indorsee,  the  defendants  setting 
up  a  defence  of  want  of  authority  to  accept,  in  con- 
sequence of  a  dissolution  of  the  partnership,  must  show 
that  the  payee  had  notice  of  the  resolution  of  the  firm  to 
dissolve  the  partnership,  and  be  no  longer  answerable 

(/)     Parkin  v.  Carruthers,  3  Esp.  N.  P.  C.  248. 
(m)  Graham  v.  Hope,  Peake's  N.P.  C.  154.     Jenkins  v.  Blizard,  1 
Stark.  N.  P.  C.  418. 

(n)  Patterson  v.  Zachariah,  1  Stark,  N.  P.  C.  71. 


(1)  But  this  applies  only  to  transactions  in  the  usual  course  of  busi- 
ness.   fVhitinan  v.  Leonard,  3  Pick.  Rep.  177. 


DISSOLUTION  OP  A  PARTNERSHIP.  249 

for  any  such  bills,  and  if  that  be  not  done,  it  is  not  suffi- 
cient to  prove  that  the  indorsee  had  notice,  for  he  is  en- 
titled to  avail  himself  of  any  circumstance  which  would 
operate  in  favour  of  the  payee.(o)  Bankers  ought  re- 
gularly to  give  notice  of  a  change  in  the  firm  by  a  cir- 
cular letter ;  but  such  change  may  also  be  notified  by  an 
alteration  of  the  name  in  the  printed  check,  and  persons 
who  have  used  the  new  checks  cannot  take  advantage 
of  the  want  of  a  more  express  notice.(p)  What 
shall  be  deemed  *a  constructive  and  implied  [*250] 
notice  is  a  little  perplexed  by  the  cases  which 
have  been  decided  on  the  subject,  but  we  will  endeavour 
to  extract  from  them  the  principles  they  have  established. 
A  notice  of  the  dissolution  of  a  partnership  is  very  com- 
monly inserted  in  the  Gazette,  but  the  insertion  of  a 
notice  therein  is  not  of  itself  sufficient  to  exempt  a 
retiring  partner  from  future  responsibility.  Such  an 
advertisement  announcing  a  dissolution,  is  admissible  as 
evidence  of  a  public  notification  of  the  fact ;  but  such 
evidence  is  of  little  avail,  unless  it  be  shown  that  the 
party  entitled  to  notice  was  in  the  habit  of  reading  the 
Gazette.(9)  (1)    It  has  indeed  been  ruled  that  in  respect 

(o)  Rooth  V.  Quin,  7  Price,  193. 

[p)  Barfoot  V.  Goodall,  3  Camph.  147.  Where  the  defendant  part- 
owner  and  managing  director  of  a  mine,  informed  the  plaintiff  that  he 
had  sold  his  shares  to  others,  who  would  in  future  be  his  paymasters  ;  it 
was  held,  that  the  operation  of  such  notice,  not  being  absolute  in  its 
terms,  was  altogether  a  question  for  the  jury,  whether  it  amounted  to  a 
notice  that  he  would  not  be  responsible  for  any  goods  subsequently  sup- 
plied ;  and  that  not  having  been  submitted  to  them,  a  new  trial  was 
granted.     Vice  v.  Fleming,  1  Younge  &;  Jerv.  227. 

(</)  Godfrey  v.  Turnbull,  1  Esp.  N.P.C.  .371.  S.  C.  Peake's  N.  P. 
C.  155.  n.  Leeson  v.  Holt,  1  Stark.  N.  P.  C.  186.  Graham  v.  Hope, 
Peake's  N.  P.  C.  154.  Gorham  v.  Thompson,  ib.  42.  Rex  w.  Holt, 
5  T.  R.  443.  Williams  v.  Keates,  2  Stark.  N.  P.  C.  290.  See  also 
JSx  parte  Usborne,  1  Glyn  &  James,  358.  A  notice  of  dissolution  in 
the  Gazette  may  be  given  in  evidence  without  a  stamp.  Jenkins  v. 
Blizard,  1  Stark.  N.  P.  C.  420. 


(1)  The  Court  oi King^s  Benchhave  recently  decided,  that  notice  in 
the  Gazette  is  notice  to  all  the  world  of  the  dissolution  of  a  partnership. 
Wright  et  al.  v.  Pulham,  2  Chitt.  Rep.  121.  The  cases  cited  by  Mr. 
Gow,  in  which  the^  question  arose,  of  how  far  the  insertion  of  a  notice 
in  the  Gazette  operated  to  exempt  a  retiring  partner  from  future  liability. 


250  THE  CONSEQUENCES  OF  THE 

of  persons  who  had  not  any  previous  dealings  with  the 
partnership,  an  advertisement  in  the  Gazette  would  be 
sufficient  presumptive  evidence  to  be  left  to  a  jury  from 
thence  to  infer  notice  of  a  dissolution,  so  as  to  prevent 
such  persons  from  recovering  against  the  parties  who 
constituted  the  firm  originally  upon  a  security  given  by 
one  of  the  parties  in  the  name  of  the  firm  after  such 
notice  of  dissolution. (r)  (1)  But  an  advertisement  in  a 
common  newspaper  is  not  even  admissible  without  proof 
that  the  party  took  in  the  paper  ;(s)  although  if  the 
paper  be  proved  to  have  been  received  by  him  it  will  be 
admissible,  notwithstanding  the  fact  of  the  dissolution 
has  not  appeared  in  the  Gazette.(^)  (2)  Where  the 
paper  containing  the  advertisement  is  proved  to  have 
been  read  by  the  party,  or  is  proved  only  to  have  been 
delivered  in  the  usual  course  at  his  house,  the  jury  may 
reasonably  be  instructed  to  consider,  whether  the  atten- 

(r)  Godfrey  v.  Turnbull,  supra.  See  also  Nevvsome  v.  Coles,  2 
Campb.  617. 

(s)  Leeson  v.  Holt,  1  Stark.  N.  P.  C.  186.  And  see  Boydell  v. 
Drumraond,  11  East,  144.  n.  Norwich  &,  LowestofF  Navigation 
Company  v.  Theobald,  1  M.  &  Malk.  N.  P.  C.  153. 

it)  Rooth  V.  Quin,  7  Price,  193. 


are  Nisi  Prius  cases ;  for  in  Rex  v.  Holt,  and  Hovil  v.  Browning,  the 
question  did  not  arise.  The  case  of  Wright  et  al.  v.  Pulham,  is  very 
shortly  reported,  and  there  being  no  statement  of  facts,  arguments  of 
counsel,  cases  cited,  or  reasons  for  the  opinion  of  the  Court,  given,  the 
report  is  not  very  satisfactory.  "  I  do  not  know  that  any  case  has  yet 
been  decided  in  this  Court  (Sup.  Ct.  of  Pennsylvania)  with  respect  to 
the  notice  of  dissolution  of  partnership."  Per  Duncan,  J.  Shaffer  v. 
Snyder,  7  Serg,  &  Rawle,  504. 

(1)  Notice  in  the  public  papers  is  conclusive  upon  all  persons  who  have 
had  no  previous  dealings  with  a  co-partnership.  Lansing  v.  TenEyck, 
3  Johns.  Rep.  300.  Mowatt  v.  Howland,  3  Day's  Rep.  353.  Martin 
V.  fValton  Sf  Co.  1  McCord's  Rep.  16.  See  6".Tohns,  Rep.  147,  148. 
Graves  v.  Merry,  6  Cow.  Rep.  701.  Bristol  v.  Sprague,  7  Wend.  Rep. 
423.  But  as  to  such  persons  as  have  had  dealings  with  a  co-partnership, 
it  is  not  so  to  be  considered,  unless  under  the  circumstances  it  appears 
satisfactorily  to  the  jury  that  it  operated  as  a  notice.  Martin  v.  Walton 
^  Co.  Graves  v.  Merry. 

(2)  Bank  of  South  Carolina  v.  Humphreys  et  al.  1  McCord's  Rep. 
388,  in  which  it  was  ruled,  that  taking  the  Gazettes  [The  Courier  and 
City  Gazette)  in  wliich  the  dissolution  of  a  partnership  was  published, 
amounted  to  express  notice. 


DISSOLUTION  OP  A  PARTNERSHIP.  250 

tion  of  a  tradesman  in  reading  a  newspaper  was  not 
likely  to  be  attracted  by  notices  of  the  dissolution  of 
partnerships,  to  which  the  attention  of  others  might  not 
be  directed ;  and  it  is  a  question  for  the  jury  to  deter- 
mine, whether,  under  all  the  circumstances  of  the  case, 
the  party  has  actually  received  notice  of  the 
dissolution.(M)(l)  In  the  case  *of  a  dormant  [  *251  ] 
partner  whose  name  has  never  been  announ- 
ced, he  may  withdraw  from  the  concern,  without  mak- 
ing the  dissolution  of  the  partnership  publicly  known; 
for  his  liability  depends  upon  the  mere  fact  of  partner- 
ship, and  no  credit  has  been  given  to  him  personally  as 
a  supposed  member  of  the  firm.(?;)  (2)  But  it  seems, 
that,  if  the  ostensible  partner  state  the  existence  of  the 
partnership  to  a  party  who  deals  with  the  firm,  the  dor- 
mant partner  is  liable  until  such  party  has  notice  of  the 
dissolution.(z^) 

After  the  dissolution  of  a  partnership,  to  which  the 
necessary  publicity  is  given,  the  partners  become  so  dis- 
united in  interest,  that  the  one  cannot  by  any  contract  or 
engagement  implicate  the  credit  of  the  others.  Therefore, 

(u)  Jenkins  v.  Blizard,  1  Stark.  N.  P.  C.  420.  See  also  Hovill  v. 
Browning,  7  East,  161.     Rowley  v.  Home,  3  Bingh.  2. 

(u)  Evans  v.  Drummond,  4  Esp.  N.  P.  C.  89.  Newmarch  v.  Clay, 
14  East,  239. 

(w)  Evans  v.  Drummond,  4  Esp.  N.  P.  C.  89.  It  has  indeed  been 
said,  that  if  the  communication  were  made  after  the  actual  dissolution, 
the  dormant  partner  would  remain  liable  until  notice  was  given  ;  but 
this  point  seems  doubtful  ;  for,  by  the  dissolution,  the  power  of  the 
ostensible  partner,  to  bind  his  former  co-partner,  ceased.  Id.  ibid.  3 
Stark,  on  Evid.  1080. 


(1)  It  is  sufficient  notice  of  the  dissolution  of  a  co-partnership  if 
such  circumstances  be  proved,  as  leave  no  rational  doubt  that  the  party 
knew  of  the  dissolution.  Jby  v.  Fining,  2  McCord's  Rep.  379.  Ob- 
serve the  facts  of  the  case.  Or  it  may  be  implied  from  the  transaction 
itself.  WhiUman  v.  Leonard,  3  Pick  Rep.  177.  Where  a  partnership 
exists  between  persons  who  reside  in  two  different  countries,  and  a 
dissolution  takes  place  from  the  breaking  out  of  a  war  between  the  two 
countries,  the  existence  of  the  war  dispenses  with  the  necessity  of  giv- 
ing public  notice  of  the  dissolution.  Griswold  v.  Waddington,  15 
Johns.  Rep.  57. 

(2)  Armstrong  v.  Hussey,  12  Serg.  &  Rawle,  315.     Kelley  et  al. 
V.  Hurlbut,  5  Cow.  Rep.  534. 

43 


251  THE  CONSEQUENCES  OF  THE 

although  the  remaining  partner  be  intrusted  with  the 
settlement  of  the  partnership  affairs,  he  cannot  indorse,  « 

in  the  name  of  the  firm  so  as  to  bind  the  retiring  part-  I 

ner,  a  security  which  formed  a  part  of  the  joint  ef-  | 

fects.(:r)(l)  Nor  can  he  by  drawing  upon  a  debtor  to 
the  firm  in  the  joint  name,  and  subsequently  negotiating 
the  bill,  render  it  an  available  security  against  the  out- 
going partner.(?/)(2)  Even  if  such  a  bill  were  discount- 
ed bona  fde^  and  the  produce  applied  to  the  liquidation 
of  the  partnership  debts,  the  discounter  could  not  enforce 
any  claim  against  the  ex-members  of  the  firm,  either 
upon  the  bill,  or  for  money  advanced  to  the  use  of  the 
firm.(z)(3)  It  has,  indeed,  been  supposed  that  the  out- 
going partner  would  not  be  liable  in  respect  of  an  in- 
dorsement made,  in  the  name  of  the  partnership  firm, 
during  the  subsistence  of  the  partnership,  if  the  security 
itself  were  not  negotiated  by  the  remaining  partner  until 
after  a  dissolution. («)  The  seceding  partners  are  not 
responsible,  where  ample  notice  of  the  dissolution  has 

\x)  Abel  V.  Sutton,  3  Esp.  N.  P.  C.  108.    S.  P.  Kilgour  v.  Finlay- 
son,  1  H.  Bl.  155. 

[y)  Kilgour  y.  Finlaysnn,  swjora. 

{2)  Id.  ibid.  (a)  Abel.  v.  Sutton,  supra. 


(1)  Sanford  v.  Mickles  et  al.  4  Johns.  Rep.  224.  1  Nott  & 
McCord's  Rep.  561.  Fisher's  Ex.  v.  Tucker's  Ex.  1  McCord's  Cha. 
Rep.  170.  See  Dolman  v.  Orchard  et  al.  2  Car.  &  Payne,  104.  Nor 
renew  a  note  in  the  Bank  in  the  co-partnership  name,  although,  during 
the  co-partnership,  the  firm  had  written  to  the  President  and  Directors, 
requesting  to  be  permitted  to  renew  their  note,  until  the  expiration  of  a 
certain  time,  during  which  time  the  renewal  was  given,  but  subsequent 
to  the  dissolution.  Bank  of  South  Carolina  v.  Humphreys  et  al.  1 
McCord's  Rep.  388.  Where  one  of  two  co-partners,  after  the  dissolu- 
tion of  the  partnership,  gave  a  note  in  the  name  of  the  firm,  for  his  own 
private  debt,  the  creditor  knowing  that  the  partnership  was  dissolved  ; 
and  this  note  being  afterwards  sued,  and  the  party  who  made  it  having 
become  bankrupt,  the  other  party  compromised  the  suit  by  giving  his 
own  note  for  half  the  debt,  and  all  the  costs  ;  part  of  which  note  he  af- 
terwards voluntarily  paid — it  was  held,  that  the  making  and  acceptance 
of  the  first  note  was  a  fraud  on  the  absent  partner,  and  that  the  second 
note  was  therefore  void.     Stearns  v.  Burnham,  4  Greenl.  Rep.  84. 

(2)  Martin,  v.  Walton,  1  McCord,  16. 

(3)  See  Le  Roy  et  al.  v.  Johnson,  2  Peters'  Sup.  Ct.  Rep.  186. 


DISSOLUTION  OF  A  PARTNERSHIP.  251 

been  given,  even  although  the  remaining  partners  con- 
tinue the  trade  in  the  name  of  the  old  firm ;  for  they  are 
not  bound,  as  a  measure  of  precaution  and  for  their  own 
protection,  to  apply  to  a  court  of  equity  for  an 
injunction  restraining  the  remaining  ""partners  [*252] 
from  using  the  style  of  the  old  partnership ;  it 
is  sufficient  to  operate  their  discharge  that  full  notice 
has  been  given  of  their  secession  from  the  partnership, 
and  they  will  not  in  such  case  be  liable  even  to  a  person 
who  was  ignorant  of  the  fact  of  the  dissolution,  unless  it 
appear  that   they  have    subsequently  interfered  in  the 
management  of  the  business,  or  allowed  their  names  to 
be  used,  or  in  any  way  authorised  the  parties  acting  in 
the  concern  to  make  use  of  their  names  and  credit.(6)(l) 
In  many  instances  of  dissolution  the  remaining  part- 
ner is,  by  agreement,  exclusively  authorised  to  arrange 
the  joint  affairs,  and  is  to  receive  the  partnership  credits, 
as  the  fund  out  of  which  to  discharge  the  partnership 
de5ts.     Where  this  is  the  case,  and  notice,  as  well  of 
the  dissolution  as  of  the  private  arrangement  between 
the  partners,  is  given,  a  debtor  to  the  firm  cannot,  by 
colluding  with  the  outgoing  partner,  obtain  from  him  a 
discharge  of  the  debt.     A  receipt  given  by  the  latter  for 
the  debt,  though  dated  anterior  to  the  dissolution,  will 

(6)  Newsome  v.  Coles,  2  Campb,  617  ;  and  see  Williams  v.  Keats, 
2  Stark.  N.  P.  C.  290.  Where  a  retiring  partner,  in  the  business  of 
carriers,  permitted  his  name  to  remain  on  the  cart,  and  over  the  house 
of  business,  he  was  held  responsible  for  the  negligence  of  the  driver. 
Stables  v.  Elev,  1  C.  &;  P.  614. 


(1)  A  party  is  liable  on  a  promissory  note  made  in  the  name  of  the 
firm  in  which  he  had  been  a  partner,  after  he  had  ceased  to  be  a  part- 
ner, and  taken  by  the  plaintiff  with  a  knowledge  that  the  partnership 
had  ceased,  but  that  the  name  of  the  party  sought  lo  be  charged  was  to 
continue  to  a  future  day.  He  had  also  said,  "  that  he  would  take  care 
that  money  should  be  ready  for  the  note."  Brown  v.  Leonard,  2 
Chitt.  Rep.  120.  So  where,  after  the  dissolution  of  a  co-partnership 
existing  between  two,  one  of  the  co-parlners  made  a  promissory  note 
signed  by  himself,  and  purporting  to  be  for  the  account  of  the  company, 
on  which  note  the  other  partner  made  a  partial  payment,  this  was  held 
sufficient  evidence  to  charge  both  partners  in  an  action  upon  ihe  note. 
Eaton  V.  Taylor  et  al.  10  Mass.  Rep.  54. 


252  THE    CONSEQUENCES    OF    THE 

be  fraudulent  and  void,  and  will  not  estop  the  remaining 
partner  from  disclosing  the  transaction  and  recovering 
payment.(c)  So,  if  the  remaining  partner  have  the  ex- 
clusive right  in  equity  to  all  the  debts,  and  a  debtor  is 
conscious  of  that  right,  a  payment  to  the  outgoing  part- 
ner will  not  affect  the  claim  of  the  remaining  partner  ;{d) 
but,  without  notice,  such  a  payment  would  discharge  the 
debtor.(e)(l)  And  where,  on  a  dissolution,  it  was  agreed 
that  the  joint  debts  should  be  received  by  an  agent 
appointed  by  both  partners,  to  which  arrangement  a 
debtor  acceded,  but  afterwards  one  of  the  partners  coun- 
termanded the  authority  given  to  the  agent,  and  per- 
sonally demanded  the  debt,  a  receipt  from  such  partner 
in  the  name  of  both  was  held  to  be  a  discharge  to  the 
debtor.(/)(2) 

In  investigating  the  rights  and  liabilities  of  a  retiring 
partner,  we  have  anticipated  those  of  a  remaining  part- 
ner^ which  are  precisely  correspondent.     He  is 
[  *253  ]  individually  invested  with  the  same  *power  of 
insisting  upon  a  sale  of  the  joint  stock,  and  the 
application  of  its  produce  in  a  due  and  legal  course  of 

(c)  Henderson  v.  Wild,  2  Campb.  561.  See  Skaife  v.  Jackson,  3 
B.  &C.  421. 

Id)  Duff  w.  East  India  Company,  15  Ves.  213.         (c)  Id.  Ibid. 

(/)  Bristow  V.  Taylor,  2  Stark.  N.  P.  C.  50.  S.  C.  6  Mau.  & 
Selw.  156. 


(1)  AVhere  J.  P.  being  indebted  to  partners  in  trade,  one  of  whom, 
after  the  dissolution  of  the  partnership,  was  declared  bankrupt,  in 
England,  paid  the  debt  to  the  bankrupt  partner,  although  before  the 
payment  he  had  received  notice  (not  from  an  authorised  person)  of  the 
dissolution  of  the  partnership,  and  of  the  bankruptcy  of  the  partner  to 
whom  payment  was  made,  such  payment  was  held  to  be  a  valid  pay- 
ment.    Cheston  v.  Page's  Ex.  4  Har.  &  McHen.  Rep.  466. 

(2)  Napier  V.  McLeod,  9  Wend.  Rep.  120.  See  Scott  v.  Trents, 
1  Wash.  Rep.  77.  But  if  a  partnership  be  dissolved,  and  a  receiver 
appointed,  a  debtor  knowing  thereof  will  not  be  discharged  by  a  pay- 
ment to  either  partner.  Manning  v.  Brickell,  2  Hayw.  Rep.  133.  And 
where  a  firm,  after  the  dissolution  of  the  partnership,  put  a  debt  at  the 
disposal  of  one  partner,  and  gave  information  of  it  to  the  debtor,  such 
partner  has  a  right  to  assign  it  as  security  for  his  private  debt,  and  in 
equity  the  assignee  may  maintain  a  suit  for  it  against  the  debtor. 
McLcinahan  v.  EUery,  3  Mason's  Rep.  269. 


DISSOLUTION    OF    A    PARTNERSHIP.  253 

administration;  but  the  exercise  of  that  power  would 
necessarily  frustrate  the  very  object  he  has  in  contem- 
plation, by  continuing  the  trade  on  his  separate  account. 
His  liabiUty  to  discharge  past  debts  is,  of  course,  in  all 
cases,  co-extensive  with  that  of  the  retiring  partner ;  but, 
generally  speaking,  he  burdens  himself  with  the  increased 
obligation   of  being  separately  responsible.     Such   an 
engagement,  if  bottomed  on  a  valuable  consideration, 
wiFl,  in  the  event  of  his  not  fulfilling  it,  subject  him  to 
such  legal  claims  only  as  may  arise  to  his  co-partner 
out  of  its  non-observance ;  because,  as  we  have  seen, 
the  compact  of  the  parties  cannot  countervail  the  rights 
of  the  creditors,  or  enable  them  to  sue  upon  a  covenant 
to  which  they  are  not  parties,  although  it  is  made  for 
their  benefit.(/)     In  a  late  case(g)  where  by  indenture 
(reciting  that  the  maker  of  the  deed  was  indebted  in  his 
separate  capacity  to  a  banking-house  in  which  he  was  a 
partner,)  hereditaments  were  conveyed  in  trust,  to  pay 
such  sums  as  then  were,  or  should  afterwards  be,  owing 
to  the  said  firm  by  the  maker  in  his  separate  capacity  ; 
and  also  to  pay  the  said  maker's  just  proportion  or  share 
of  such  debts  as  then  were,  or  should  afterwards  be, 
owing  from  him  jointly  and  as  a  co-partner  in  the  said 
firm ;  and  also  to  pay  the  several  persons,  mentioned  in 
a  schedule   to   the   said   indenture,  the   several  debts 
therein  specified,  and  due  from  the  maker  rateably  and 
in  equal  proportions  ;  it  was  determined  that  the  court, 
in  the  construction  of  the  deed,  would  lean  in  favour  of 
equal  payment  of  all  debts.     The  partnership  creditors 
will  not  be  permitted,  on  the  one  hand,  to  take  in  pri- 
ority to  the   separate  or  scheduled  creditors,  but  must 
come  in  pari  passu  with  them ;  on  the  other  hand,  the 
words  "just  proportion  or  share,"  in  the  clause  of  the 
deed  speaking  of  the  debts  due  by  the  firm  in  which  the 
maker  was  a  partner,  must  be  understood  to  mean,  not 
what  was  due  from  him  to  the  partnership,  or  what,  as 
between  himself  and  his  partners,  he  might  be  bound  to 
contribute  to  the  partnership  fund ;  but  what,  in  conse- 

(/)  Ex  parte  Peele,  6  Ves.  604.     Ex  parte  Williams,  Buck,  15. 
Ex  parte  Freeman,  Ibid.  471. 

(o-)  Wadeson  v.  Richardson,  1  Ves.  &;  Bea,  109. 


253  THE    CONSEQUENCES    OF    THE 

quence  of  being  a  partner,  he  may  owe  to  the  partner- 
ship creditors.  Quoad  them,  his  just  proportion  is  what, 
with  reference  to  the  state  of  the  partnership  funds,  and 

the  abiUty  of  the  other  partners,  he  may  even- 
[  *254  ]  tually  *be  called  upon  to  contribute  to  the  joint 

debts,  so  that  all  those  debts  may  be  paid.  So, 
with  respect  to  future  engagements,  the  liability  of  the 
continuing  partner  to  perform  them  is  similar  to  that 
which  the  law  casts  upon  the  outgoing  partner.  The 
latter  may,  after  a  dissolution,  pledge  the  credit  of  the 
pre-existing  firm,  and  his  act  will  have  a  binding  opera- 
tion upon  the  remaining  partner,  if  the  fact  of  the  disso- 
lution have  not  been  duly  and  regularly  notified.  To 
secure  himself,  therefore,  against  such  a  possible  respon- 
sibility, it  is  incumbent  on  the  remaining  partner  to 
apprize  the  world  of  the  retirement  of  his  co-partner 
from  the  business. 

We  have  already  stated,  that  where  a  total  destruc- 
tion of  the  trade  is  not  contemplated,  but  one  or  more 
of  the  partners  alone  renounce  it,  it  is  usually  stipulated 
between  them  that  the  joint  stock  shall  become  the 
separate  property  of  the  remaining  partners ;  and  the 
validity  of  transfers  made  in  pursuance  of  such  stipula- 
tions has  frequently  been  made  a  point  of  discussion  in 
courts  of  equity.  This  subject  we  have  already  par- 
tially considered,  and  shall  examine  it  more  at  large 
when  we  inquire  into  the  consequences  resulting  from  a 
dissolution  by  bankruptcy  ;  but  the  substance  of  the  de- 
terminations upon  such  questions  may  here  be  stated  to 
be,  that  where  there  has  been  a  fair  dissolution  of  part- 
nership, and  one  partner,  by  agreement,  retains  the  part- 
nership effects,  the  transmutation  is  so  complete,  that 
even  joint  property,  remaining  in  specie^  is  considered  as 
his  separate  estate,(/i)  if  exclusive  possession  of  the 
joint  property  were  given  to  him  according  to  the  nature 
of  the  contract.(i)  And  where  the  remaining  partner 
of  an  old  firm  agreed,  on  the  formation  of  a  new  part- 
nership, that  all  securities  for  money,  shares  of  ships, 

(A)  Ex  parte  Ruffin,  6  Ves.  119.    Ex  parte  Williams,  11  Ves.  3. 
(i)  Ex  parte  Harris,  1  Madd.  589. 


DISSOLUTION   OF   A    PARTNERSHIP.  254 

and  debts  due  to  him  in  respect  of  the  old  house,  subject 
to  the  debts  and  engagements  affecting  the  same,  should 
become  the  joint  property  of  the  new  firm,  according  to 
the  proportions  of  capital  agreed  to  be  brought  in  by  the 
new  members ;  yet,  although  the  new  members  advanced 
only  part  of  their  stipulated  capitals,  it  was  decided  that 
the  member  of  the  old  firm  had  not  any  interest  in  the 
securities  which  belonged  to  the  old  house,  except  as  a 
partner  of  the  new  firm.(A:)  But  if  in  such  cases  the 
assignment  be  conditional  only,  and,  in  conse- 
quence of  the  *non-performance  of  the  condi-  [  *255  ] 
tion,  the  retiring  partner  file  a  bill  in  equity 
against  the  remaining  partner  for  an  account,  alleging 
fraud  in  the  non-observance  of  the  articles  of  dissolution, 
and  praying  an  injunction  and  receiver,  which  are  or- 
dered, and  the  remaining  partner  afterwards  become  a 
bankrupt,  the  subject  matter  of  the  assignment  retains 
its  original  character  of  joint  property.(/) 

It  remains  to  be  observed,  that  where  there  is  not  a 
renunciation  by  the  outgoing  partner  of  his  right  to  his 
proportion  of  the  joint  capital,  his  co-partner,  if  he  con- 
tinue the  trade  after  a  dissolution,  and  employ  the  com- 
mon capital  in  it,  will  be  bound  to  account  for  the  profits 
which  may  be  derived  ;(m)  although,  if  the  profits  are 
made  solely  by  the  skill  of  the  remaining  partner,  it  is 
said  to  be  the  practice  of  a  court  of  equity  to  allow  him 
a  compensation  commensurate  with  his  exertions. (w) 
But  where  the  profits  arise  out  of  the  use  of  the  partner- 
ship stock  mixed  with  the  separate  property  of  the  re- 
maining partner,  it  has  been  doubted  whether  the  out- 
going partner  is  entitled  to  insist  upon  a  participation. (o) 
A  court  of  equity  will  enforce  an  agreement  made  upon 
the  dissolution  of  a  partnership,  that  a  particular  book 
used  in  the  trade  should  become  the  exclusive  property 

{k)  Young  V.  Keighly,  15  Ves.  558. 

U)  Ex  parte  Rowlandson,  1  Rose,  416. 

(m)  Brown  v.  Vidler,  cited  15  Ves.  223.  Featherstonhaugh  v.  Fen- 
wick,  17  Ves.  298.     Brown  v.  De  Tastet,  1  Jac.  284. 

(n)  See  the  arguments  in  Crawshay  v.  Collins,  15  Ves.  218.  See 
also  JBrown  v.  Litton,  1  P.  Wms.  142. 

(o)  Per  Lord  Eldon,  15  Ves.  229. 


255  THE    CONSEQUENCES    OF    A 

of  one  of  the  partners,  and  that  a  copy  of  it  should  be  de- 
livered to  the  other.(p)  And  where,  on  a  general  refer- 
ence of  all  matters  in  dispute  between  A,  B,  and  C,  co- 
partners, the  arbitrators  ascertained  the  capital,  includ- 
ing a  debt  from  A,  and  some  dubious  debts,  and  finding 
the  partnership  debts  and  gross  value  of  the  stock,  award- 
ed the  same  in  specific  shares,  and  directed  B  to  receive 
and  pay  all  debts,  keep  accounts,  and  on  a  balance  of 
receipts,  credit  was  to  be  given  for  A's  share  against  his 
debt.  After  the  award  had  been  long  acted  on,  it  turn- 
ed out  that  B  received  some  debts  which  had  been  omit- 
ted in  the  account  laid  before  the  arbitrators,  and  on 
which  the  award  had  proceeded ;  and  also  good  debts  to 
a  larger  amount  than  stated,  and  the  Court  of  Exchequer 
held,  in  the  absence  of  all  fraud,  that  A  was  entitled  to 

an  account  of  such,  and  also  of  the  dubious  debts, 
[  *256  ]  ^notwithstanding  the  general  reference ;  but  that 

any  over  receipts  in  respect  of  the  good  debts 
was  to  follow  the  directions  of  the  award  with  respect 
to  the  dubious  debts.(^)  It  is,  perhaps,  needless  to  re- 
mark, that  the  same  cause  which  operates  to  prevent 
one  partner  from  maintaining  an  action  against  his  co- 
partners for  work  and  labour  performed  on  account  of 
the  partnership  during  its  subsistence,  applies  with  equal 
force  to  such  an  action  for  a  compensation  for  services 
rendered  after  its  dissolution.  As  where,  upon  the  dis- 
solution of  a  joint-stock  company,  two  of  the  members 
were  sued  by  a  creditor  of  the  concern,  and  they  em- 
ployed the  plaintiff,  an  attorney,  and  also  a  member  of 
the  company,  to  defend  the  suit ;  it  was  held,  that  as  he 
himself  derived  a  benefit  from  the  defence,  and  was  lia- 
ble to  contribute  to  the  expenses,  he  could  not  sue  his 
late  co-partners  for  the  costs.(r) 

(p)  Lingen  v.  Simpson,  1  Sim,  &  Stu.  600. 
Iq)  Spencer  v.  Spencer,  2  Y.  &  J.  249. 

(r)  Milburn  v.  Codd,  6  B.  &  C.  419.    S.  C.  1  Mann.  &  Ryl.  238  ; 
and  see  Parkin  v.  Fry,  2  C.  &  P.  N.  P.  C.  311. 


DISSOLUTION    BY    BANKRUPTCY.  256 

SECTION  III. 

The  Co?isequences  of  a  Dissolution  by  Bimkruptcy, 

It  is  now  to  be  considered  what  are  the  consequences 
resulting  from  the  dissolution  of  a  partnership  when  it  is 
occasioned  by  bankruptcy. 

The  questions  which  have  arisen  from  partnership 
bankruptcies  are  extremely  numerous,  and  many  of  them 
excessively  complicated.  We  must  attempt,  by  classifi- 
cation and  arrangement,  to  reduce  them  to  something 
like  order  and  system.  It  will  then  be  seen  that  the 
great  men,  who,  for  a  century  past,  have  successively 
held  the  great  seal,  and  presided  over  the  bankrupt  laws, 
have  displayed  a  peculiar  share  of  learning  and  discrimi- 
nation in  this  intricate  and  abstruse  department  of  juris- 
prudence, and  have  given  a  series  of  enlightened,  com- 
prehensive, and  consistent  decrees  upon  the  subject, 
admirably  calculated  for  the  advancement  of  trade  in 
general,  and  for  the  protection  of  the  rights  of  the  par- 
ties more  immediately  interested. 

*All  the  partners  in  a  firm  may  become  bank-  [  *257  ] 
rupt  together ;  or  one  only  may  become  bankrupt, 
while  the  others  remain  solvent.     The  first  is  the  most 
simple  case,  and  we  will  therefore  begin  by  considering 
it. 

To  sustain  a  joint  commission,  it  is  necessary  there 
should  have  been  a  joint  trading  ;  but  if  the  trading  con- 
tinue, it  matters  not  that  the  partnership  has  been  dis- 
solved. Thus,  a  commission  of  bankruptcy  has  been 
sustained  against  a  partnership  on  a  debt  contracted 
many  years  after  a  dissolution,  the  sale  of  partnership 
goods  having  been  continued. (s)  The  enumeration  of 
every  trade  which  is  sufficient  to  bring  a  man  or  a  body 
of  men  within  the  operation  of  the  bankrupt  laws,  would 
not  only  be  too  tedious,  but  would  be  foreign  to  our  pur- 
pose: they  will  be  found  collected  and  arranged  in  the 

(a)  Tarletonu.  Backhouse,  cited  3  Swanst.  571.    See  19  Ves.  464. 

44 


257  THE   CONSEQUENCES    OF   A 

various  excellent  treatises  on  the  bankrupt  laws.(;)  On 
this  branch  of  the  subject  we  will  merely  notice  a  recent 
decision,(M)  in  which  an  acknowledgment  by  a  person 
that  he  was  in  partnership  with  another  as  a  trader,  who 
afterwards  was  declared  a  bankrupt,  was  held  sufficient 
to  constitute  a  trading,  although  no  acts  of  buying  or 
selling  were  proved  to  have  taken  place  during  the  part- 
nership. 

A  second  ingredient  requisite  to  the  support  of  a  joint 
commission  is,  that  e«cA  of  the  partners  should  have  com- 
mitted an  act  of  bankruptcy. {y)  And  formerly,  if  a  com- 
mission had  been  taken  out  against  three  partners,  and 
two  of  them  only  had  committed  acts  of  bankruptcy,  the 
commission  was  void  to  all  purposes ;  for  if  all  the  part- 
ners named  in  it  had  not  been  found  bankrupts,  it  could 
not  have  been  sustained  against  any.(w;)  In  this  respect, 
however,  the  law  is  altered  by  a  recent  act  of  parlia- 
ment,(:i')  which  empowers  the  Lord  Chancellor  to  super- 
sede a  commission  of  bankruptcy  as  to  one  or  more  of 
the  partners  without  prejudice  to  its  validity  against  the 
rest.  And,  according  to  this  provision,  a  joint  commis- 
sion invalid  in  its  concoction,  no  act  of  bankruptcy  hav- 
ing been  committed  by  one,  has  been  superseded 
[  *258  ]  as  to  him,  without  prejudice  to  its  *valdity  as  to 
the  other,  or  his  certificate  thereunder.(2/)  So, 
where  a  commission  was  issued  against  two  partners, 
and  another  commission  was  subsequently  issued  against 
one  of  them  and  three  other  persons,  which  latter  com- 
mission was  superseded  as  to  the  partner  included  in 

(0  See  Cook's  B.  L.  (7th  ed.)  43.  Whitra.  B.  L.  (2d  ed.)  7.  1 
Mont.  B.  L.  (2d  ed.)  4.  Eden's,  B.  L.  2.;  and  see  the  6  Geo.  4.  c. 
16.  s.  2. 

{u)  Parker  v.  Barker,  3  B.  Moore,  226.  S.  C,  1  Brod.  &  Bingh. 
9;  but  see  Bromley  v.  King,  1  Ryan  &  Mood.  228. 

(t;)  Beasly  r.Beasly,  1  Atk.  97.     Allan  t'.  Hartley,  Cook's  B.  L.  7. 

iiv)  Id.  ibid.  (a?)  6  Geo.  4.  c.  16.  s.  16. 

\y)  Ex  parte  Bygrave,  2  Gl.  &  J.  391.  The  first  being  a  legal 
commission,  the  court  has  no  jurisdiction  to  supersede  it  as  to  one  party, 
on  a  petition  by  the  assignees  under  a  second  commission ;  but  the 
court  afterwards,  on  the  petition  of  the  assignees  under  the  first,  super- 
seded the  second  commission  as  to  one  of  three  parties.  In  re  Col- 
man,  1  Mont.  &  M.  15. 


^ 


DISSOLUTION    BY   BANKRUPTCY.  258 

the  first  commission  without  prejudice  as  to  the  other 
three  bankrupts,  and  the  assignees  under  the  second 
commission  sold  an  estate  belonging  to  one  of  the  three 
bankrupts ;  the  purchaser  having  objected  that  a  good 
title  could  not  be  made  on  the  ground  that  the  second 
commission  was  altogether  void,  and  that  the  6  Geo.  4. 
c.  16.  s.  16.  only  applied  to  cases  of  valid  commissions, 
Sir  John  Leach  determined  otherwise,  and  made  a  decree 
for  specific  performance.(2')  To  sustain  a  commission 
against  all  the  members  of  a  firm,  the  acts  of  bankruptcy 
must  be  committed,  either  during  the  trading,  or  subse- 
quent thereto,  and  during  the  existence  of  a  debt  con- 
tracted when  in  trade.(a)  What  are  the  acts  which  the 
legislature  has  declared  to  be  conclusive  evidence  of  the 
bankruptcy  of  traders  it  will  be  inconsistent  with  our 
object  to  detail ;  we  will  therefore  content  ourselves  with 
referring  to  the  several  digests  on  the  subject,  in  which 
those  acts  are  enumerated,  and  the  numerous  decisions 
of  the  courts  upon  them  are  noticed.(5)  There  are, 
however,  a  few  cases  in  which  the  validity  of  joint  com- 
missions has  been  disputed,  on  the  ground  of  there  not 
being  any  joint  act  of  bankruptcy  to  support  them,  and 
to  these  we  will  briefly  advert.  Where  there  were  two 
partners  in  a  concern  at  Manchester  and  in  London^  under 
diflferent  names,  and  one  partner  resided  at  each  place,  and 
the  London  partner,  being  upon  a  visit  for  a  few  days 
at  Manchester,  occasionally  attended  the  counting-house 
there,  and  both  partners,  afraid  of  an  arrest,  left  the 
house  of  business  privately,  carrying  the  books  of  ac- 
count with  them,  it  was  ruled  to  be  an  act  of  bankruptcy 
in  both.(c)  And  where  two  traders,  in  partner- 
ship, *left  their  shop,  and  told  their  shopman  that  [  *259  ] 
they  did  so  for  the  purpose  of  endeavouring  to 
get  some  bills  of  exchange  discounted,  and  directed  him 
to  say  that  they  were  not  in  the  way,  or  to  make  some 

(z)  Burlton  v.  Wall,  1  Tamlyn's  Rep.  113. 

(a)  Ex  parte  Bamford,  15  Ves.  449.  Ex  parte  Dewdney,  ibid. 
495. 

(6)  Cook's  B.  L.  72.  Whitm.  B.  L.  18.  1  Mont.  B.  L.  31.  Eden's 
B.  L.  11.     See  also  6  Geo.  4.  c.  16.  s.  3,  4,  5,  6,  &  8. 

(c)  Spencer  ».  Billing,  3  Campb.  312. 


259  THE    CONSEQUENCES    OF    A 

excuse  for  them,  in  case  a  creditor  should  call;  and  a 
creditor  having  called  on  that  and  the  following  day 
when  they  were  both  at  home,  and  desired  to  see  either 
the  one  or  the  other  of  them,  the  shopman,  without  fur- 
ther authority,  denied  them,  to  which  they,  being  after- 
wards informed  of  it,  did  not  object,  it  was  held  that  the 
jury  were  warranted  in  concluding  that  they  absented 
themselves  from  their  shop  with  an  intent  to  delay  their 
creditors.(c?)  So,  a  conveyance  by  a  firm  of  all  their 
stock  in  trade,  debts,  and  effects,  for  the  benefit  of  all 
their  creditors,  but  without  the  concurrence  of  every 
creditor  both  joint  and  separate,  is  an  act  of  bank- 
ruptcy.(e)  But  a  conveyance  executed  by  one  only  of 
three  partners,  with  intent  that  it  shall  not  be  eflfective 
unless  executed  by  all  of  them,  is  not,  as  it  seems,  an 
act  of  bankruptcy.(/)  And  where  one  of  three  bankers, 
who  was  the  only  residing  partner  at  the  place  where 
the  business  was  carried  on,  and  who  alone  transacted 
the  business,  absented  himself  from  the  banking-house, 
shut  it  up,  and  stopped  payment,  it  was  determined  that 
this  was  not  evidence  of  a  joint  act  of  bankruptcy  com- 
mitted by  all  the  three ;(^)  and  there  is  not  wanting  the 
authority  of  Lord  Eldon  to  show  that  such  an  absenting 
by  one  partner  does  not  constitute  an  act  of  bankruptcy 
by  each  of  those  who  may  be  united  with  him  in  partner- 
ship.(A)  So,  if  one  of  two  partners  go  abroad  for  the 
purpose  of  transacting  his  business,  but  not  with  the 
intent  of  avoiding  his  creditors,  and,  in  consequence  of 
the  other  partner  having  contracted  a  debt  in  the  part- 
nership name  and  committed  an  act  of  bankruptcy,  the 
clerk  of  the  firm  goes  to  the  partner  abroad,  and  com- 

{d)  Capper  v.  Desanges,  3  B.  Moore.  4.  S.  C.  8  Taunt.  671.  See 
Ex  parte  Gardner,  1  Ves.  &  Bea.  77. 

(e)  Eckhardt  v.  Wilson,  8  T.  R.  140.  See  the  cases  of  Bemey  v. 
Davison,  4  B.  Moore,  126.  S.  C.  1  Bro.  &  Bingh.  408 ;  and  Bemey 
V.  Vyner,  4  B.  Moore,  322.    S.  C.  1  Bro.  &  Bing.  482. 

(/)  Button  V.  Morrison,  17  Ves.  200.  A  fraudulent  grant  by  deed 
made  by  one  partner  to  his  co-partner,  is  an  act  of  bankruptcy  in  the 
grantor,  though  not  in  the  grantee.  Whitwell  v.  Thompson,  1  Esp. 
N.  P.  C.  68. 

[g)  Mills  V.  Bennett,  2  Maul.  &  Selw.  556. 

(A)  Ex  ■parte  Mavor,  19  Ves.  543. 


DISSOLUTION    BY    BANKRUPTCY.  260 

municates  to  him  the  insolvent  state  of  the  house, 
upon  which  he  expresses  his  determination  *not  [  *260  ] 
to  return,  this  is  not  a  sufficient  act  of  bank- 
ruptcy to  support  a  joint  commission. (i)  A  joint  act 
of  bankruptcy  concerted  between  three  partners  and  an 
attorney,  who  acted  both  as  their  agent  and  as  the 
agent  of  the  petitioning  creditor,  is  not  sufficient  to  sus- 
tain a  commission  on  the  petition  of  the  latter,  although 
he  was  not  actually  privy  to  the  preconcert.(^) 

With  respect  to  the  petitioning  creditor's  debt,  the 
amount  of  it,  its  nature,  and  the  time  when  it  should 
have  been  contracted  to  sustain  a  joint  commission,  dif- 
fer in  no  respect  from  those  requisites  which  the  law 
has  imposed  to  give  it  validity  in  the  case  of  a  separate 
commission.  It  will  therefore  be  sufficient  to  observe, 
that  it  must  be  a  joint  debt  due  from  or  payable  by(/) 
all  the  partners,  since  none  other  can  be  made  the  foun- 
dation of  an  application  for  a  commission  against  the 
members  of  a  firm  collectively.  It  must  also  have  been 
contracted  before  any  of  the  acts  of  bankruptcy  which 
are  to  support  the  commission  were  committed.  There- 
fore, where  an  attorney,  after  an  act  of  bankruptcy  com- 
mitted by  one  partner,  but,  in  consequence  of  a  previous  « 
retainer,  had  a  sum  due  to  him  from  the  firm ;  it  was 
held  that  the  debt  did  not  constitute  a  good  petitioning 
creditor's  debt  to  support  a  joint  commission.(?/i) 

(i)  Ex  parte  Mutree,  5  Ves.  576.  See  Warner  v.  Barber,  Holt's 
N.  P.  C.  175. 

(k)  Prosser  v.  Smith,  Holt's  N.  P.  C.  442.  See  also  Ex  parte 
Staff,  Buck,  440. 

(/)  6  Geo.  4.  c.  16.  s.  15.     See  Eden's  B.  L.  .38. 

(m)  Ex  parte  Miller,  Buck.  283.  By  a  late  act  of  parliament  it  is 
provided,  that  if,  after  adjudication,  the  debt  of  the  petitioning  creditor 
be  found  insufficient,  the  Lord  Chancellor  may,  upon  the  application  of 
a  creditor  who  has  proved  a  sufficient  debt,  and  whose  debt  had  been 
incun-ed  not  anterior  to  that  of  the  petitioning  creditor,  order  the  com- 
mission to  be  preceded  in,  and  it  shall  by  such  order  be  deemed  valid. 
6  Geo.  4.  c.  16.  s.  18.  This  provision  was  expressly  confined  to  a 
debt  incurred  not  anterior  to  that  of  the  petitioning  creditor,  on  ac- 
count of  the  doctrine  of  relation  to  the  act  of  bankrup'tcy  ;  for  that  doc- 
trine cannot  be  extended  beyond  the  accruing  of  the  debt  of  the  peti- 
tioning creditor  without  destroying  the  tide  of  the  assignees.  Ex  parte 
Birkett,  2  Rose,  71.    Ex  parte  Bowness,  2  M.  &  S.  479. 


260  THE    CONSEQUENCES    OF   A 

Where  there  is  or  has  been  a  joint  trading,  acts  of 
bankruptcy  have  been  severally  committed  by  each 
member  of  a  firm,  and  a  legal  petitioning  creditor's  debt 
to  the  requisite  amount  is  due  from  them,  a  joint  com- 
mission of  bankruptcy  may  be  effectually  sustained. 
But  in  such  a  commission,  before  the  late  statute, 
all  the  ostensible  partners  must  have  been  included ; 
for  a  commission  being,  to  some  purposes,  considered 

as  in  the  nature  of  an  action  at  law,  it  was 
[  *261  ]  held  that  a  joint  commission  against  two  *of 

several  partners  could  not  be  supported. (n) 
If  one  partner  had  been  an  infant,  and  therefore  strict- 
ly not  an  object  of  the  bankrupt  laws,(o)  or  if  one 
had  laboured  under  the  influence  of  that  dreadful  visita- 
tion lunacy,(;?)  or  had  been  an  uncertificated  bank- 
Tupt,(q)  there  could  not  be  a  joint  commission  against 
the  others ;  separate  commissions  must  have  been  taken 
out  against  each  individually.  This  however  is  reme- 
medied  by  a  recent  enactment,(r)  which  declares  "  that 
any  creditor  or  creditors  whose  debt  or  debts  is  or  are 
sufficient  to  entitle  him  or  them  to  petition  for  a  com- 
mission against  all  the  partners  of  any  firm,  may  petition 
for  a  commission  against  one  or  more  partners  of  such 
firm;  and  every  commission  issued  upon  such  peti- 
tion shall  be  valid,  although  it  does  not  include  all 
the  partners  of  the  firm."  Before  this  statute  it  was 
not  necessary  to  have  included  a  dormant  or  se- 
cret partner   in   a   commission  against  the  ostensible 

(w)  Allen  V.  Downes,  Willes'  Rep.  in  not.  474.  Streatfield  v.  Hal- 
liday,  3  Term  R.  779. 

(o)  Ex  parte  Henderson,  4  Ves.  163.  JEx  parte  Barwis,  6  Ves. 
601.  Rex  V.  Cole,  1  Lord  Raym.  444.  O'Brien  v.  Currie,  3  C.  & 
P.  383 ;  but  see  Ex  parte  Watson,  16  Ves,  265. 

(p)  Ex  parte  Lay  ton,  6  Ves,  440.     See  Anon.  13  Ves.  590. 

{fj)  Ex  parte  Martin,  15  Ves.  114.  Ex  parte  Bold,  Co.  B.  L.  12. 
In  a  case  where  an  uncertificated  bankrupt  entered  into  partnership  with 
another  person,  and  a  joint  commission  issued  against  them,  Sir  Wil- 
liam  Grant  held,  that  the  creditors  of  the  partnership  had  no  equity 
against  the  assignees  under  the  first  commission  for  an  account  and  ap- 
plication to  their  debts  of  the  property  used  or  acquired  in  that  part- 
nership. Everett  v.  Backhouse,  10  Ves.  94  ;  and  see  Ex  parte  Storks, 
2  Rose,  179.     S.  C.  3  Ves  &  Bea.  105. 

(r)  6  Geo.  4.  c.  16.  s.  16. 


DISSOLUTION    BY    BANKRUPTCY.  261 

partners  ;(s)  although,  where  there  was  a  partner  abroad, 
and  from  the  title  of  the  firm,  as  if  it  had  the  word 
"  company"  subjoined,  it  was  doubtful  whether  it  con- 
sisted solely  of  the  partners  in  England,  it  would  not 
have  been  prudent,  without  inquiry,  to  have  issued  a 
commission  against  the  latter  only.(^)  Doubts,  indeed, 
have  been  entertained,  whether  a  joint  commission  can 
be  supported  against  the  ostensible  members  of  the  firm, 
and  a  dormant  partner  whose  interest  is  confined  to  a 
share  of  the  profits  ',(ti)  but  probably,  as  a  joint  creditor 
has  an  election  to  consider  a  dormant  partner  his  debtor, 
and  as  there  is  scarcely  a  partnership  in  which 
the  members  of  it  are  not  entitled  in  ^different  [  *262  ] 
interests,  a  commission  including  him  would  be 
upheld  on  the  ground  that  tbe  joint  property  must  be 
considered,  as  regards  its  distribution  under  the  bank- 
rupt laws,  the  promiscuous  joint  property  of  them  all.(z;) 
Formerly,  where  there  were  several  partners,  it  used 
to  be  the  practice  to  take  out  separate  commissions 
against  each  partner,  as  well  as  a  joint  commission 
against  all  of  i\\eT(\.(w)  This  arose,  probably,  from  the 
difficulty  which  commissioners  found,  where  only  a 
single  commission  was  taken  out,  of  marshalling  the 
joint  and  separate  estates  between  the  respective  classes 
of  creditors,  the  statute  having  given  no  direction  for 
that  purpose :  but  that  practice  was  discountenanced,  it 
having  been  the  common  course  of  the  court,  upon  peti- 
tion, to  make  an  order  for  the  separate  creditors  to 
come  in  and  prove  their  debts  under  the  joint  commis- 
sion ;  and  that  the  assignees  should  keep  distinct  ac- 
counts of  the  respective  estates.(:r)  And  now  by  a  ge- 
neral order(y)  made  by  Lord  Ross/yn,  where  there  is  a 
joint  commission  issued,  the  commissioners  are  to  cause 

(s)  Ex  parte  Benfield,  5  Ves.  424. 

[t]  Expartc  Laylon,  6  Ves.  438. 

(?<)  Ex  parte  Hamper,  17  Ves.  404.  See  also  Ex  parte  Matthews, 
3  Ves  &  Bea.  126. 

{v)  Ex  parte  Hodgkinson,  19  Ves.  294.  Ex  parte  Norfolk,  ibid. 
455.     Ex  parte  Watson,  ibid.  459.     Ex  parte  Hunter,  2  Rose,  382. 

{w)  In  re  Simpson,  1  Atk.  137.  {x)  Co.  B.  L.  9. 

(t/)  8th  March,  1794.  2  Co.  B.  L.  284.  See  also  Twiss  v.  Massey, 
1  Atk.  67.     In  re  Powel,  Davies,  373. 


262  THE  CONSEQUENCES    OF   A 

distinct  accounts  to  be  kept  of  the  joint  and  separate 
estates,  and  any  separate  debts  due  from  individual  part- 
ners, (or  where  there  are  inferior  partnerships,  consist- 
ing of  some  of  the  bankrupts,  debts  due  from  such  part- 
nerships,(2')  are  to  be  proved  under  the  joint  commis- 
sion ;  the  respective  estates  to  be  apphcable  in  the  first 
instance  to  the  payment  of  their  respective  debts. 

According  to  the  present  practice,  a  joint  commission 
against  all  or  two  or  more  of  the  partners,  or  separate 
commissions  against  each  of  them,  may  be  supported ; 
but  it  seems  that  a  joint  commission  against  all  and  a 
separate  commission  against  any  of  the  partners  cannot 
legally  subsist  at  the  same  time,  if  the  commission  which 
is  prior  in  point  of  existence  was  acted  upon  and  in  legal 
operation  ;(a)  because,  by  the  assignment  under  it,  all 
the  interest  and  effects  of  the  bankrupts  or  bankrupt  will 

vest  in  their  or  his  assignees.  At  law,  therefore 
[  *263  ]  if  a  joint  commission  *be  first  issued,  and  be 

proceeded  in,  a  subsequent  separate  commission 
is  invalid;  and  if  a  separate  commission,  which  has 
been  opened  and  is  in  operation,  subsist,  a  joint  one, 
afterwards  sealed,  cannot  as  a  matter  of  course  be  pro- 
secuted.(6)(l)  There  is  indeed  a  case  apparently  mi- 
litating against  this  principle,  in  which,  after  and  during 
the  existence  of  two  separate  commissions,  which  had 
issued  against  two  of  three  members  of  a  firm,  a  joint 
commission  was  taken  out  against  the  whole  firm  ;  and 
although  the  question  as  to  the  validity  of  the  joint  com- 
mission was  not  ultimately  decided  by  the  court,  yet  the 
late  Lord  Chief  Baron  Thompson  intimated  his  opinion 
that  it  was  valid  until  actually  superseded.(c)  By  a 
modern  act  of  parliament(^)  it  is  provided,  "that  if 
after  a  commission  issued  against  two  or  more  members 

(z)  Ex  parte  Worthington,  3  Madd.  26. 

(fl)  Warner  v.  Barber,  2  B.  Moore,  71.  S.  C.  8  Taunt.  176.  Ex 
parte  Bullen,  1  Rose,  136. 

{h)  Ex  parte  Munton,  1  Ves.  &  Bea.  64.  Ex  parte  Rawson,  ibid. 
163.     Ex  parte  Crew,  16  Ves.  236.     Warner  v.  Barber,  ante. 

(c)  Butts  V.  Bilkie,  4  Price,  241.     S.  C.  2  Rose,  171.  n. 

{d)  6  Geo.  4.  c.  16,  s.  17. 

(J)  See  Murray  v.  Murray,  5  Johns.  Cha.  Rep.  76.  et  seq. 


DISSOLUTION    BY    BANKRUPTCY.  263 

of  a  firm,  any  other  commission  or  commissions  shall  be 
issued  against  any  other  member  or  members  of  such 
firm,  such  other  commission  or  commissions  shall  be 
directed  to  the  commissioners  to  whom  the  first  com- 
mission was  directed ;  and  immediately  after  the  adju- 
dication under  such  other  commission  or  commissions, 
the  commissioners  shall  convey  and  assign  all  the  estate, 
real  and  personal,  of  such  bankrupt  or  bankrupts,  to  the 
assignees  chosen  in  the  first  commission,  and  after  such 
conveyance  all  separate  proceedings  under  such  other 
commission  or  commissions  shall  be  stayed,  and  such 
commission  or  commissions  shall  without  affecting  the 
validity  of  the  first  commission,  be  annexed  to  and  form 
part  of  the  same :  provided  that  the  Lord  Chancellor 
may  direct  that  such  other  commission  or  commissions 
be  issued  to  any  other  commissioners,  or  that  such  other 
commission  or  commissions  shall  proceed  either  sepa- 
rately or  in  conjunction  with  the  first  commision." 
Where  a  joint  commissiom  has  issued  against  two  part- 
ners in  this  country,  it  forms  no  ground  for  superseding 
it,  that  there  is  a  prior  separate  commission  in  Ireland 
in  prosecution  against  one  of  them.(e)  And  although  a 
second  commission,  where  there  is  a  former  one  in  ope- 
ration against  the  same  parties,  is  strictly  and  legally 
speaking  void,  yet  where  the  convenience  of  administer- 
ing a  partnership  fund  requires  it,  and  it  can  be 
done  without  prejudice  *to  transactions  which  [*264] 
have  taken  place  under  the  first  commission,  the 
Lord  Chancellor  will  so  dispose  of  a  prior  separate  com- 
mission, either  by  superseding  or  removing  it,  as  to  pre- 
vent its  being  an  impediment  to  the  prosecution  or 
validity  of  a  subsequent  joint  commission.(/)  It  there- 
fore frequently  occurs,  that  a  joint  commission  is  taken 
out  and  is  sustained  after  the  parties  against  whom  it  is 


(e)  Ex  parte  Cridland,  3  Ves.  &  Bea.  94.  S.  C.  2  Rose,  164. 
(/;  Fx  parte  Rawson,  1  Ves.  &  Bea.  163.  S.  C.  1  Rose,  423.  Ex 
parte  Pachelor,  2  Rose,  26.  In  re  Colbeck,  Buck,  52.  Under  the  6 
Geo.  4.  c.  16.  s.  16.  the  court  has  power  to  supersede  a  commission 
invalid  as  to  one  parly,  because  a  prior  commission  had  issued  against 
him,  without  prejudice  to  its  validity  against  the  others  included  in  it. 
Burlton  v.  Wall,  1  Tamlvn's  Rep.  1 13. 

45 


264  THE  CONSEqUKNCES  OF  A 

directed  have  been  declared  bankrupts  under  separate 
commissions  ;  by  which  means,  not  only  is  great  expense 
saved,  but  the  joint  effects  are  distributed  to  better  ad- 
vantage.(^)  And  if  it  can  be  made  appear  that  the 
bankrupt's  estate  Avill  be  benefitted  by  prosecuting  the 
joint  commission,  and  consequently  that  the  better  ad- 
ministration of  justice  requires  it  to  be  upheld,  the  Lord 
Chancellor,  where  no  injustice  can  ensue,  will  supersede 
the  prior  separate  commissions  ;(A)  and  by  so  doing,  he 
imparts  legal  validity  to  the  subsequent  joint  one.(i)  In 
a  late  case  in  which  a  separate  commission  issued  against 
one  of  three  partners,  and  afterwards  a  commission 
was  sued  out  against  two  of  the  firm,  the  first,  as  being 
the  least  extensive  commission,  was  superseded.(Q  So 
where  there  are  inferior  partnerships  between  some  of 
the  partners  and  different  commissions,  the  court  will,  in 
general,  support  that  commission  which  includes  all  the 
partners,  and  supersede  the  others. (/)  And  it  is  not  a 
sufficient  reason  against  superseding  the  separate  com- 
mission, that  a  separate  creditor  to  a  large  amount  will 
be  thereby  divested  of  his  right  of  voting  in  the  choice 
of  assigness.(m)  And  notwithstanding  a  prosecution 
is  instituted  against  the  bankrupt  for  not  surrendering 
under  the  separate  commission,  it  will  be  superseded 
to  make  way  for  a  more  extensive  commission,  if  the 
omission    to    surrender   were    from    a   mistake   as    to 

the  legality  of  the  commission,  and  without 
[  *265  ]  *any  fraudulent  intent.(n)     But  if  a  bankrupt  is 

exposed  to  a  prosecution  for  felony  in  not  sur- 
rendering to  a  separate  commission,  and  no  circumstan- 
ces of  extenuation  appear,  that  commission  will  not  be 
superseded  solely  for  the  convenience  of  a  joint  one.(o) 

(g)  Ex  parte  Hardcastle,  2  Cox,  397.     S.  C.  Co,  B.  L.  11. 

\h)  Ex  parte  Munton,  1  Ves.  &  Bea.  63.  S.  C.  1  Rose,  433.  Ex 
parte  Pachelor,  supra.     Ex  parte  Crew,  16  Ves.  237. 

{i\    Per  Richards,  B.,  Butts  v.  Bilkie,  4  Price,  247. 

[k)  Ex  parte  Smith,  1  Glyn  &  James,  256. 

(/)  Ex  parte  Bonbonus,  8  Ves.  540.  Ex  parte  Rawson,  1  Ves.  & 
Bea.  160.     S.  C.  1  Rose,  423. 

{rn)  Ex  parte  Pachelor,  2  Rose,  26.    ' 

(n)  Ex  parte  Lavender,  18  Ves.  18.     S.  C.  1  Rose,  55. 

(o)  Ex  parte  Roberts,  2  Rose,  378. 


DISSOLUTION    BY    BANKRUPTCY.  265 

And  a  separate  commission  will  not  be  superseded  at 
the  instance  of  the  creditors  under  a  joint  commission, 
if  there  be  not  any  joint  efFects,(;?)  or  if  it  be  apparent 
that  the  joint  commission  cannot  be  sustained. (^r)  Nor, 
as  it  seems,  -will  it  be  superseded  until  the  adjudication 
of  bankruptcy  under  the  joint  commission. (/)  And  where 
a  strong  objection  exists  to  the  interference  of  the  court, 
and  circumstances  render  the  superseding  the  legal  com- 
mission inexpedient,  as  if  the  certificate  of  the  bankrupt 
under  the  separate  commission  would  be  thereby  destroy- 
ed,(5)  or  sales  have  taken  place  under  it,  which  conse- 
quently ought  to  be  protected,  the  court,  to  give  effect  to 
the  certificate,  in  the  one  case,(/)  or  to  the  sales  in  the 
other,  will,  instead  of  granting  a  supersedeas^  direct  the 
commission  and  the  proceedings  (which,  being  a  species 
of  record  in  bankruptcy,  gives  the  court  that  authority,(zf ) 
to  be  brought  into  the  bankrupt  office,  there  to  be  im- 
pounded, and  not  to  be  produced  without  the  order  of 
the  Chancellor.(ij)  When  the  separate  or  joint  commis- 
sion is  superseded,  the  Lord  Chancellor  will  make  such 
equitable  arrangements  as  the  circumstances  of  the  case 

(p)  Ex  parte  Rowlandson,  1  Rose,  89.  Ex  parte  Wheeler,  Buck,  26. 

\q)  Ex  parte  Roberts,  1  Mad.  72. 

Ir)  Ex  parte  Gardner,  1  Ves.  &  Bea.  74. 

(s)  It  is  in  the  discretion  of  the  court  to  supersede  the  first,  or,  as  it 
has  been  properly  termed,  the  legal  commission,  whether  the  bankrupt 
has  got  his  certificate  under  it  or  not.  Ex  parte  Cutten,  Buck,  69. 
But  in  cases  where  he  has  obtained  it,  the  court  is  generally  unwilling 
to 'supersede.  Ex  parte  Yi^m^pev,  17  Ves.  413.  Thus,  where  there 
had  been  delay  on  the  part  of  the  joint  creditors,  and  the  bankrupt's 
certificate  under  the  separate  commission  had  been  before  the  Chancel- 
lor for  allowance,  the  court  refuced  to  interpose.  Ex  parte  Rowland- 
son,  1  Rose,  89.  Ex  parte  Cutten,  supra.  But  where  there  has  been 
fraud  under  the  separate  commission,  the  circumstance  of  the  bankrupt 
having  obtained  his  certificate,  or  even  set  up  in  trade  again,  will  be 
disregarded.  Ex  parte  Poole,  2  Cox,  227.  Ex  parte  Gillam,  ibid. 
193. 

(t)  See  Ex  parte  Lezverhnd,  1  Atk.  145. 

(u)  Ex  parte  Shaw,  1  Glyn  &  James,  125. 

[v)  Ex  parte  Tobin,  1  Ves.  &  Bea.  308.  Ex  parte  Rowlandson,  I 
Rose,  416.  Ex  parte  Rawson,  1  Ves.  «fe  Bea.  160.  S.  C.  1  Rose, 
423.  Ex  parte  Hamper,  17  Ves.  413.  Ex  parte  Thompson,  1  Rose, 
285. 


266  THE    CONSEQ,UENCES    OF    A 

may  require  ;(w)  and  will  direct  the  proofs,  taken 
[  *266  ]  under  the  *superseded  commission,  though  it  has 

become  .a  nullity,  to  be  transferred  to,  and  to  be 
received  under  the  other.(^)  And  where  the  rights  of 
the  parties  evidently  require  the  interposition  of  a  court 
of  law,  it  will,  in  case  of  the  existence  of  two  commis- 
sions, exercise  a  species  of  equitable  jurisdiction.  Thus 
where  a  separate  commission  issued  against  A,  and  a 
joint  commission  against  A  and  B,  and  the  assignees  un- 
der the  separate  commission  obtained  a  verdict  against 
C ;  the  court  ordered  the  money  to  be  paid  into  court 
until  a  petition,  pending  before  the  Lord  Chancellor  to 
supersede  the  separate  commission,  was  decided.(3/)  If 
the  commission  that  first  issued  is  superseded,  the  peti- 
tioning creditor  is  entitled  to  his  costs,  unless  it  was 
taken  out  against  good  faith;  and  it  is  not  sufficient  to 
deprive  him  of  his  right  to  costs,  that  he  had  notice  of  a 
docket  having  been  struck  against  all  the  members  of 
the  firm.(^)  But  he  will  not  be  compelled  to  attend  be- 
fore the  commissioners  for  the  purpose  of  proving  the  act 
of  bankruptcy  under  the  subsequent  joint  commission, 
because  he  ought  not  to  be  constrained  to  be  a  witness 
to  destroy  his  own  proceedings  ;(a)  and  he  is  not  bound 
to  supersede  his  commission,  because  a  joint  commission 
has  issued.(6)  When  a  joint  commission  is  regularly 
sued  out  between  two  or  more  partners,  it  does  not  abate 
by  the  death  of  one  of  them,  after  the  bankruptcy  has 
been  found.  But  if  one  of  the  firm  be  dead  at  the  time 
of  issuing  the  commission,  it  seems  that  it  is  absolutely 
void.(c) 


(w)  JExparte  Ravvson,  1  Ves.  &  Bea.  160.     S.  C.  1  Rose,  423. 
(x)  Ex  parte  Upham,  17  Ves.  212.     Ex  parte  Tobin,  1  Ves.  &  Bea. 
380.     Ex  parte  Rawson,  supra. 

(y)  Hodgkinson  v.  Travers,  1  B.  &  C.  257. 

(z)  Ex  parte  Brown,  1  Ves.  &  Bea.  60.     S.  C.  1  Rose,  433. 

(a)  Ex  parte  Stone,  I  Glyn  &  James,  7. 

(b)  Ex  parte  Brown,  supra.     See  also  Ex  parte  Gardner,  1  Ves. 
&  Bea.  74. 

(c)  Beasly  v.  Beasly,  1  Atk.  97.     Warrington  v.  Norton,  Forr.  184. 

1  Vern.  154.     See  also  Ex  parte  Smith,  5  Ves.  295.     Ex  parte  Beale, 

2  Ves.  &  Bea.  29.     6  Geo.  4.  c.  16.  s.  26. 


DISSOLUTION  BY  BANKRUPTCY.  266 

The  legislature,  considering  that  bankrupts  have  been 
guilty  of  "a  fraud,  and,  consequently,  that  they  are  im- 
proper persons  to  be  trusted  any  longer  with  the  manage- 
ment of  their  own  estate,  has  appointed  other  persons  in 
their  place,  to  whom,  for  the  security  of  their  creditors,  the 
commissioners  are  to  assign  their  effects.    We  will,  there- 
fore, now  consider  the  effect  of  an  assignment  under  a  joint 
commission,  and  what  property,  by  virtue  thereof,  vests  in 
the  assignees.     Mr.  Justice  Blackstonc,  in  his 
*Commentaries,(f/)  says,  that  the  whole  of  the  [  *267  ] 
property  which  the  bankrupt  had  in  himself  at 
the  time  he  committed  the  first  act  of  bankruptcy,  or 
that  has  vested  in  him  since,  before  his  debts  are  satis- 
fied or  agreed  for,  pass  by  the  assignment.     And  in  an 
early  case(e)  we  find  it  laid  down  by  Lord  Chancellor 
Ki7ig,  that  the  assignment  made  by  the  commissioners 
under  a  joint  commission,  passes  as  well  the  separate  as 
the  joint  estate  of  the  bankrupt  partners.     Therefore, 
after  such  assignment,  no  property  of  any  kind  remains 
in  the  bankrupts ;  and  nothing  can  be  taken  by  the  as- 
signees under  a  separate  commission  subsequently  sued 
out  against  any  one  of  them.     It  has  also  been  said,  that 
notwithstanding  the  property  in  a  partnership  be  in  one 
or  more  members  of  the  firm  solely,  with  an  interest  in 
the  profits  merely  in  the  others,  in  bankruptcy  such  pro- 
perty passes  as  joint  property,  and  is  administered  with 
regard  to  the  joint  creditors,  as  the  promiscuous  joint 
property  of  the  whole  firm.(y ) 

It  is  often  of  the  utmost  importance  to  determine  what 
is  to  be  deemed  joint  and  what  separate  property,  since  it 
not  unfrequently  happens,  that  the  separate  estate  is 
more  than  sufficient  to  satisfy  all  the  primary  demands 
upon  it,  while  the  joint  estate  amounts  scarcely  to  any 
thing,  or  vice  versa.  What  is  to  be  considered  joint  pro- 
perty at  the  termination  of  a  partnership,  we  have  al- 

{d)  Vol.  2.  p.  485. 

(e)  Hx  parte  Cook,  P.  Wms.  500.  See  also  Ex  parte  Baudier,  1 
Atk.  98.  Hague  v.  Rolleston,  4  Burr.  2174.  Bolton  v.  Puller,  1 
Bos.  &;  Pul.  547. 

(/)  Ex  parte  Hunter,  2  Rose,  382. 


267  THE  CONSEQUENCES  OF  A 

ready  had  occasion  to  obserYe;(^)  and,  indeed,  little 
difficulty  occurs  with  respect  to  the  nature  of  the  pro- 
perty, where  the  partnership  has  continued  down  to  the 
time  of  the  bankruptcy,  and  the  bankrupts  are  not  at 
that  time,  and  have  not  been  before,  connected  with  any 
other  firm :  but  it  sometimes  happens  that  a  dissolution 
or  a  change  has  taken  place  in  the  members  of  the  part- 
nership, or  that  there  are  subordinate  and  distinct  part- 
nerships, between  certain  of  the  members  of  the  principal 

,  one.    To  adjust  the  clashing  interests  and  claims 
[  *  268  ]  of  *solvent  partners,  and  of  different  classes  of 

creditors  under  such  complicated  circumstances, 
is  necessarily  a  matter  of  much  nicety.  It  is  settled  that 
the  property,  to  pass  under  the  commission  as  joint  es- 
tate, must  have  retained  that  character  down  to  the 
period  of  the  bankruptcy,  for  if  previously  thereto,  either 
by  bona  Jide  contract  or  otherwise,  the  joint  property  of 
the  general  partnership  be  converted  into  the  separate 
propety  of  an  individual  partner,  or  into  the  joint  pro- 
perty of  two  or  more  partners,  it  will  devolve  upon  the 
assignees  in  the  new  character  which  it  has  acquired, 
and  be  distributable  amongst  that  class  of  creditors  to 
the  satisfaction  of  whose  claims  it  would  in  ordinary 
cases  be  apropriated.  We  will  therefore  inquire  how 
far  the  contract,  or  the  acts  and  conduct  of  the  partners, 
may  be  considered  as  giving  a  different  nature  and  de- 
nomination to  property,  which  originally  belonged  to  the 
whole  firm.  The  cases  in  which  an  alteration  in  the 
nature  of  the  property  has  been  contended  to  have  taken 
place  by  the  mere  force  of  contract,  have  almost  univer- 
sally been  those  in  which,  anterior  to  the  bankruptcy,  a 
dissolution  of  or  change  in  the  partnership  has  been 
effected,  and  there  the  court  has  given  effect  to  the  trans- 

(g)  See  an^e,  p.- 232.  Mines  are,  for  many  purposes,  partnership 
property.  They  are  liable  to  the  debts  of  the  partnership,  and  debts  to 
the  co-partnership;  and  notwithstanding  the  bankruptcy  of  a  partner 
indebted  to'  the  co-partnership,  the  accounts  are  to  be  taken  beyond  the 
tinae  of  the  bankruptcy,  and  up  to  the  time  of  the  sale  ;  the  debts  of  the 
partnership  are  first  to  be  satisfied,  and  out  of  the  bankrupt's  share  re- 
payment is  to  be  made  to  the  co-partnership  of  what  is  due  to  it  from 
him.     Fereday  v.  Wightwick,  1  Taralyn's  Rep.  250. 


DISSOLUTION    BY    BANKRUPTCY.  268 

mutation  upon  this  principle,  that  if  it  were  to  be  held 
that  what  at  any  time,  during  the  partnership,  has  been 
part  of  the  joint  effects,  should  in  all  future  time  remain 
so,  notwithstanding  a  bona  fide  transfer,  no  partnership 
could  ever  arrange  their  affairs. (A)  But  to  operate  a 
conversion  by  contract,  the  contract,  though  it  need  not 
be  in  writing,(f)  and  may  be  either  absolute  or  condi- 
tional,(/?:)  must  be  express ;  for,  although  the  joint  pro- 
perty be  left  in  the  custody  of  one  or  more  partners,  yet 
if  it  be  so  left,  without  an  agreement  having  for  its  ob- 
ject the  transmutation  of  it,  the  mere  dissolution  will 
not  produce  that  effect.  For  dissolution,  simply  consi- 
dered, can  only  amount  to  a  declaration  that  the  part- 
nership is  not  to  be  carried  on  any  farther,  except  for 
the  purpose  of  winding  up  the  affairs ;  and  when  there 
is  no  transfer  of  the  property,  each  partner  is  left 
in  possession  as  a  trustee  for  all,  to  the  extent  of 
enabling  each  to  call  upon  all  to  apply  the  partner- 
ship effects  to  the  purposes  to  which  they  ought  to  be 
applied,  even  if  there  was  no  dissolution.(/)  But 
*if  joint  creditors  do  not  interpose,  (and,  if  they  [  *269  ] 
dislike  the  arrangement,  it  is  competent  to  them 
at  the  time  to  desire  payment  of  their  debts  from  each 
of  the  partners,)  and  the  partners  make  a  fair  contract 
inter  se  ;  if  they  do  actually  dissolve  the  partnership ;  if 
they  fully  effect  a  dissolution,  with  a  contract  for  divi- 
sion of  the  property ;  if  they  make  an  actual  assignment 
by  deed  or  otherwise ;  if  possession  is  delivered  upon 
that,  and  enjoyment  makes  it  perfect ;  if  all  these  cir- 
cumstances combine,  and  there  is  nothing  of  fraud  im- 
peaching the  transaction,  then,  as  is  determined  in  many 
cases,(7n)  the  joint  property  becomes  separate  property 
by  virtue  of  that  contract,  and  the  joint  property  is 

(h)  Per  Lord  Eldon,  Ex  parte,  Ruffin,  6  Ves.  119. 

(i)  Ex  parte  Williams,  11  Ves.  6. 

{k)  Ex  parte  Fell,  10  Ves.  348.  Ex  parte  Rowlandson,  1  Rose, 
416.  {I)  Ex  parte  Williams,  supra. 

(m)  Ex  parte  Titner,  1  Atk.  186.  Ex  parte  Ruffin,  6  Ves.  119. 
Ex  parte  FeW,  10  Yes.  347.  Ex  parte  AVilliams,  11  Ves.  6.  Ex 
parte  Slow,  Co.  B.  L.  539.  Ex  parte  Rowlandson,  2  Ves,  &  Bea. 
172.  S.  C.  1  Rose,  416.  Ex  parte  Peake,  1  Madd.  346.  Ex  parte 
Harris,  ibid.  583. 


269  THE    CONSEGtUENCES    OF    A 

throughout  to  be  treated  as  separate  property,  and  the 
joint  creditors  cannot  follow  it ;  but,  from  the  moment  of 
the  agreement  it  becomes  the  separate  estate  of  the 
party  who  has  contracted  for  it,  just  as  much  as  if  he 
had  acquired  it  in  market  overt  of  any  stranger.  Where, 
however  one  of  three  partners  assigned  his  share  to  one 
of  the  other  two  partners,  and  a  separate  commission 
afterwards  issued  against  the  third,  Lord  Hardwicke 
held,  that  the  joint  estate  of  the  whole  firm  should  be 
applied  to  the  payment  of  the  partnership  debts  ;(n)  and 
Lord  Eldon,  in  alluding  to  that  determination,  thought  the 
assignment  by  one  partner  to  one  only  of  the  two,  mate- 
rially distinguished  it  from  the  case  of  an  assignment  to 
all  the  remaining  partners. (o)  But  in  every  case  of 
transmutation,  the  bona  fides  of  the  transaction  is  strictly 
to  be  examined,  and  it  seems  that  the  length  of  time 
which  elapses  between  the  assignment  and  failure  of  the 
remaining  partners,  is  evidence  of  the  good  faith  of  the 
transaction. (;j)  And  the  transmutation  of  the  property 
must  be  complete,  and  the  contract  respecting  it  be  ex- 
ecuted before  the  bankruptcy,  in  order  to  divest  the  joint 
creditors  of  their  right  of  treating  it  as  joint  estate.  If 
the  partners  conveying  their  interests  are,  as  a  measure 
of  protection,  compelled  to  call  in  aid  the  assistance  of 
a  court  of  equity,  to  exact  from  the  partners,  to  whom 
they  have  assigned,  an  implicit  observance  of  the  terms 

on  which  the  bargain  was  made,  and  that  court 
[  *270  ]  do  extend  its  ^relief  previously  to  bankruptcy, 

by  enjoining  the  latter  from  interfering  with  the 
property  and  appointing  a  receiver,  the  original  denomi- 
nation of  the  property  will  not  be  changed.  Thus, 
where  a  retiring  partner  assigned  the  partnership  estate 
and  effects  to  a  continuing  partner,  and  afterwards  the 
continuing  partner  refused  to  accept  the  bills,  the  stipu- 
lated consideration  for  the  assignment ;  the  retiring  part- 
ner then  filed  his  bill  against  him,  praying  an  injunction 
and  receiver,  which  were  ordered :  upon  a  subsequent 
bankruptcy  of  the  continuing  partner,  it  was  held,  that 

(n)  Ex  parte  Burnaby,  Co.  C.  L.  246. 
(o)  Ex  parte  Ruffin,  6  Ves.  129. 
{p)  Ex  parte '^^'iWmvas,  11  Ves.  6. 


DISSOLUTION    BY    BANKRUPTCY.  270 

such  interference  of  the  court  restored  the  property  to 
its  original  character  as  joint  property ;  unless  the  re- 
tiring partner  had,  by  his  conduct,  between  the  time  of 
his  obtaining  the  injunction  and  the  bankruptcy,  render- 
ed nugatory  the  effect  of  such  interference,  and  upon 
that  an  inquiry  was  directed.(7)  So,  in  all  cases  of 
executory  agreements,  where  the  farther  act  necessary 
to  complete  the  transfer  does  not  happen  before  the 
bankruptcy,  the  nature  of  the  property  is  not  changed 
by  the  contract,  but  retains  its  character  of  joint  estate. 
Thus,  where  a  retiring  partner  assigned  and  sold  all  his 
interest  in  the  concern  to  the  continuing  partner,  who 
agreed  to  pay  a  debt  owing  by  the  former,  and  also  to 
pay  him  a  stated  annuity,  for  the  due  payment  of  which, 
it  was  stipulated,  that  the  father  of  the  continuing  part- 
ner, who  was  not  a  party  to  the  assignment,  should  be 
security ;  this  was  held  to  be  an  executory  contract,  and 
consequently  that,  the  father  having  refused  to  become 
security,  the  interest  of  the  retiring  partner  in  the  part- 
nership stock  was  not  thereby  transferred. (r)  Besides, 
in  those  instances  of  contract  to  which  we  have  allud- 
ed, the  acts  of  the  partners  themselves,  exemplified  in  a 
course  of  dealing,  may  have  the  effect  of  changing  the 
quality  of  that  property  which  originally  partook  of 
the  nature  of  joint  estate.  There  can  be  no  doubt,  that, 
as  between  themselves,  a  partnership  may  have  transac- 
tions with  an  individual  partner,  or  with  two  or  more  of 
the  partners,  having  their  separate  estate  engaged  in 
some  joint  concern,  in  which  the  general  partnership  is 
not  interested,  and  that  they  may  by  their  acts  convert 
the  joint  property  of  the  general  partnership  into 
the  *separate  property  of  an  individual  partner,  [  *271  ] 
or  into  the  joint  property  of  two  or  more  partners, 
or  e  comer  so.  And  their  transactions  in  this  respect 
will,  generally  speaking,  bind  third  persons ;  and  third 

{q)  Ex  parte  Rowlandson,  2  Ves.  &  Bea.  172.  S.  C.  I  Rose,  416. 
If  the  remaining  partner  had  become  bankrupt  before  the  bill  in  equity 
had  been  filed,  ?ind  the  injunction  and  receiver  ordered,  it  seems  that  the 
property  would  have  passed  to  his  separate  creditors,  by  virtue  of  the 
statute  of  James.     Id.  ibid.     And  see  post. 

(r)  Ex  parte  Wheeler,  Buck,  25. 

46 


271  THE    CONSEQUENCES    OF    A 

persons  may  take  advantage  of  them  in  the  same  man- 
ner, as  if  the  partnership  were  transacting  business  with 
strangers.  For  instance,  suppose  the  general  partner- 
ship to  have  sold  a  bale  of  goods  to  the  particular  part- 
nership, a  creditor  of  the  particular  partnership  might 
take  those  goods  in  execution  for  the  separate  debt  of 
that  particular  partnership.(.s)  And  where  four  per- 
sons were  partners  in  a  banking-house  at  Liverpool,  and 
two  of  them  carried  on  a  separate  mercantile  concern 
in  London,  and  certain  bills  of  exchange  deposited  with 
the  house  at  Liverpool  to  be  discounted,  were  remitted 
to  the  house  in  London  upon  the  general  account  be- 
tween the  two  houses,  it  was  determined  that  the  Lon- 
don house  acquired  the  property  in  the  bills  remitted,  and 
therefore  that,  upon  the  failure  of  both  houses,  their 
assignees  were  entitled  to  retain  them.(/) 

We  will  now  endeavour  to  elucidate  another  head  of 
transmutation,  occasioned  by  the  acts  of  partners  them- 
selves, and  this  will  embrace  all  the  questions  affecting 
partnerships,  that  have  arisen  out  of  the  statute  of 
James,\ii)  which  vests  in  the  assignees  such  goods  as, 
by  the  consent  and  permission  of  the  true  owner,  the 
bankrupts  have  in  their  possession,  order,  and  disposi- 
tion, at  such  time  as  they  shall  become  bankrupt.  In 
investigating  this  subject,  it  is  proposed  to  consider, 
first,  those  cases  in  which  previously  to  bankruptcy,  a 
dissolution  of  or  a  change  in  the  partnership  has  taken 
place,  and  the  joint  property  has  been  left  in  the  exclu- 
sive possession  of  one  or  more  of  the  former  partners  ; 
and,  secondly,  those  which  have  established  the  princi- 
ple applicable  to  a  dormant  partner,  who  has  suffered 
his  share  of  the  property  to  continue  in  the  order  and 
disposition  of  the  ostensible  partner,  down  to  the  time  of 

(s)  Per  Eyre,  C.  J.     Bolton  v.  Puller,  1  Bos.  &  Pul.  539. 

\t)  Id. Ibid. 

(m)  21  Jac.  1.  c.  19.  s.  11.  By  the  6  Geo.  4.  c.  16.  s.  1.  this  sta- 
tute is  repealed,  but  the  11th  section  of  the  statute  of  James  is 
re-enacted  by  the  72d  section  of  the  repealing  statute  almost  in  totidem 
verbis.  The  adjudged  cases,  which  are  detailed  throughout  the  work, 
and  which  were  decided  with  reference  to  the  statute  of  James,  are 
therefore  retained,  for  the  purpose  of  explanation,  and  as  guides  to  the 
construction  to  be  put  upon  the  statute  of  Geo.  4. 


DISSOLUTION    BY    BANKRUPTCY.  271 

his  bankruptcy.  The  last  division  would,  perhaps,  in 
point  of  correct  distribution,  be  more  fitly 
*considered  when  we  treat  of  the  effect  of  an  [  *272  ] 
assignment  under  a  separate  commission  as  it 
regards  separate  property,  but  in  order  to  present  a  con- 
tinuate  view  of  all  the  decisions  upon  this  branch  of 
partnership  law,  it  has  been  thought  better  to  embody 
them.  With  regard  to  the  question  first  proposed  for 
consideration,  it  may  be  premised  that  the  principal, 
and,  indeed,  the  only  difficulty  in  deciding,  whether  what 
was  originally  joint  property  is  still  to  be  deemed  the 
property  of  all  the  partners,  or  the  separate  property  of 
the  possessors,  lies  in  ascertaining  whether  the  latter  are 
alone  the  reputed  owners  of  it ;  for  the  object  and  spirit 
of  the  act  is,  that  where  persons  are  induced  to  give 
credit  by  seeing  a  bankrupt  in  possession  of  property, 
that  property,  whether  it  be  the  bankrupt's  or  another's, 
shall  be  applied  in  payment  of  the  debts  provable  under 
his  commission.  It  is  the  principle  of  discountenancing 
fictitious  credit,  and  its  concomitant  frauds,  which  the 
statute  enforces:  indeed  there  can  be  no  other  just 
ground  on  which  one  man's  debts  are  to  be  paid  with 
the  property  of  another.  In  furtherance  of  this  princi- 
ple, it  has  uniformly  been  held  that  such  a  possession  as 
is  calculated  to  give  a  delusive  credit  is  a  reputed  pos- 
session within  the  meaning  of  the  statute.  When,  there- 
fore, the  fact  of  reputed  ownership  is  settled,  the  appli- 
cation of  the  statute  is  easy;  for,  from  the  reputed 
ownership,  false  credit  arises;  from  that  false  credit 
arises  the  mischief,  and  to  that  mischief  the  remedy  of 
the  statute  applies.  But  to  make  the  statute  available 
to  the  creditors  of  the  party  in  whose  visible  possession 
the  property  has  been,  that  possession  must  continue  up 
to  the  time  of  the  bankruptcy ;  for,  if  withdrawn;  bo?ia 
fide,  by  the  owner,  at  any  time,  however  short,  before 
the  bankruptcy,  the  property  cannot  be  reclaimed  by 
the  assignees.(v)  But  a  removal  made  in  contemplation 
of  bankruptcy,  being  fraudulent,  will  not  alter  the  pos- 

{v)  Jones  V.  Dwyer,  15  East,  21.     Ex  parte  Smith,  3  Madd.  63. 
S.  C.  Buck,  149.    Storer  v.  Hunter,  3  B.  &  C.  368. 


272  THE  CONSEQUENCES  OF  A 

session,  in  consideration  of  the  law.(i^)  And,  to  con- 
stitute a  fraud,  on  the  part  of  the  true  owner,  it  is  neces- 
sary that  the  property  should  be  left  in  the  order  and 
disposition  of  the  bankrupt  with  his  consent;  where 
this  is  not  the  case,  it  would  rather  be  to  encourage, 
than  to  check  fraud,  if  what  had  been  surreptitiously  de- 
tained were  to  be  divested  from  the  innocent  owner,  and 
transferred  to  the  assignees  of  the  bankrupt.(ar)  In  cases 

of  partnership,  where  the  transfer  of  the  joint  pro- 
[  *273  ]  perty  *from  the  retiring  to  the  continuing  partners 

is  not  made  matter  of  contract,  it  may  be  diffi- 
cult to  estabhsh  an  actual  consent  to  any  change  in  the 
right  to  the  property  taking  place ;  but,  although  no  actual 
consent  can  be  proved,  yet  for  this  purpose  the  acts  and 
conduct  of  the  parties  will  warrant  the,  presumption  of  an 
assent,  and  that  will  be  inferred,  if,  from  the  time  of  the 
dissolution  down  to  the  time  of  the  bankruptcy,  the  re- 
tiring partners  renounce  their  equity  of  having  the  part- 
nership credits  applied  in  discharge  of  the  parnership 
debts,  and  allow  the  continuing  partners  to  deal  as  they 
think  fit  with  the  property,  and  to  act  with  the  w^orld 
respecting  it,  so  as  thereby  to  gain  them  a  false  and 
delusive  credit. (y)  A  dissolution,  on  the  eve  of  the  re- 
tirement of  a  partner,  will  not,  of  itself,  convert  into 
separate  property  the  joint  estate  left  in  the  possession 
of  the  partners  continuing  the  business ;  for  such  a  pos- 
session is  qualified,  and  is  clothed  with  a  trust  to  apply 
the  property  in  discharge  of  the  joint  debts,(2^)  unless, 
indeed,  the  laches  of  the  retiring  partner  has  been  such 
as  to  suffer  the  joint  property  to  remain  in  the  exclusive 
possession  of  the  continuing  partners  for  such  a  length 
of  time  as  falsely  to  give  them  an  appearance  of  sub- 
stance.(a)  And  a  fortiori  the  statute  will  not  apply  to 
a  case  where  the  joint  property  is  wrongfully  withheld 
by  one  partner,  against  whom  a  bill  in  equity  is  filed  for 

{w)  Ex  parte  Smith,  supra. 
\x)  Ex  parte  Richardson,  Buck.  488. 

(y)  See  West  v.  Skip,  1  Ves.  sen.  242.    Ex  parte  Ruffin,  6  Ves. 
129. 

(z)  Perhord  Eldo7i,  Ex  parte  Williams,  11  Ves.  6. 
(c)  West  V.  Skip,  supra. 


DISSOLUTION   BY    BANKRUPTCY.  273 

an  account,  and  an  injunction  to  restrain  him  from  dis- 
posing of  it,  pending  which  he  becomes  a  bankrupt.(6) 
But  if  a  new  firm  be  constituted  of  some  of  the  members 
of  an  old  firm,  either  with  or  without  the  addition  of 
others,  and  the  whole  of  the  stock  in  trade  of  the  old 
firm  be  delivered  over  to  the  new  firm,  and  they  be  al- 
lowed to  appear  to  the  world  as  apparent  owners  of  it, 
and  afte wards  become  bankrupts,  in  such  case  all  the 
effects  of  the  old  partnership  foUnd  in  specie  amongst  the 
property  seized  under  the  commission  will  vest  absolutely 
in  the  assignees;  and  though  there  be  outstanding  debts  of 
the  former  firm  unsatisfied,  these  effects  so  found  in  specie 
will  not  be  considered  as  the  joint  estate  of  the  former 
firm,  either  for  the  benefit  of  joint  creditors,  or  the  part- 
ners who  have  withdrawn. (c)  Therefore,  where,  upon 
the  dissolution  of  a  partnership  between  a  father 
and  his  son,  it  was  agreed  t^at  until  the  *son  [  *274  ] 
was  provided  for,  the  father  should  allow  him  a 
third  of  the  profits,  and  the  father  afterwards  formed  a 
partnership  with  a  third  person,  and  carried  into  it  the 
stock  belonging  to  the  former  partnership ;  on  a  com- 
mission of  bankruptcy  being  awarded  against  the  father 
and  son,  it  wa^  held  that  their  joint  property  having  been 
permitted  by  the  son  to  become  the  visible  property  of 
the  new  partnership,  it  must  in  the  first  instance,  be  ap- 
plied in  satisfying  the  creditors  of  that  partnership,  and 
that,  if  aftewards  any  surplus  remained,  the  share  of  the 
father  in  it  would  be  his  own  separate  property,  and 
therefore  subject  to  the  claims  of  his  separate  cre- 
ditors.(c?)  And  again,  on  the  dissolution  of  a  partnership 
between  A,  B,  and  C,  three  persons  as  distillers,  one  of 
them  (to  whom  the  property  in  fact  belonged)  leased  to 
C  and  to  one  J,  the  distil-house  and  premises,  and  the 
several  stills,  vats,  and  utensils  of  trade  specified  in  a 
schedule  as  used  by  the  former  partnership,  and  C  and  J 
were  to  carry  on  the  business  on  the  premises,  which 
they  accordingly  did  for  some  time,  but  afterwards  be- 

(6)  West  V.  Skip,  swpra 

(c)  Ex  parte  Ruffm,  apd  Ex  parte  Williams,  supra.  Ex  parte  Fell, 
10  Ves.  347. 

[d)  Ex  parte  Barrow,  2  Rose,  252. 


274  THE  CONSEQUENCES  OP  A 

came  bankrupts;  whereupon  a  question  was  raised, 
whether  such  stills,  vats,  and  utensils  so  continuing  in  the 
possession  of  C  and  J,  and  used  by  them  in  their  trade 
in  the  same  manner  as  by  the  former  partners,  passed 
under  the  statute  to  the  assignees,  as  being  in  the  pos- 
session, order,  and  disposition  of  the  bankrupts,  at  the 
time  of  their  bankruptcy  as  reputed  owners  ;  and  it  was 
held  that  the  stills,  which  were  fixed  to  the  freehold, 
did  not  pass  to  the  assignees  under  the  words  goods  and 
chattels,  in  the  statute;  but  that  the  vats,  &c.,  which 
were  not  so  fixed,  did  pass  to  the  assignees,  as  being  left 
by  the  true  owner  in  the  possession,  order,  and  disposition 
(as  it  appeared  to  the  eye  of  the  world)  of  the  bankrupts, 
as  reputed  owners. (e)  So,  if  a  country  partnership,  con- 
sisting of  three  partners,  sell  their  goods  in  London  in  the 
names  of  two  of  the  firm,  the  property  in  London  will,  it 
seems,  be  in  the  order  and  disposition  of  the  two.(/)  In 
cases  of  conditional  transfers  by  some  to  the  other  part- 
ners of  the  joint  estate,  we  have  seen  that  where  the  con- 
dition is  not  performed  before  the  bankruptcy  the  nature 
of  the  property  is  not  changed  by  the, simple  force  of  the 
contract ;  but  in  such  cases,  or  in  cases  in  which  the  con- 
sideration for  the  transfer  is  not  paid,  the  property  will  still 

pass  as  separate  estate  under  the  statute,  if  from 
[  *275  ]  *the  time  of  the  contract  down  to  the  date  of 

the  bankruptcy,  the  assignees  are  permitted  by 
the  assignors  to  continue  in  sole  possession,  and  to  carry 
on  trade  and  acquire  credit  as  sole  owners  of  it.  There 
can,  indeed,  under  such  circumstances,  be  no  solid  dis- 
tinction between  a  permitted  possession  under  a  contract 
incomplete  as  regards  the  persons  contracting,  and  one 
which  is  tolerated  by  the  parties  independently  of  con- 
tract. The  one  must  be  as  productive  of  the  mischief 
contemplated  by  the  statute  as  the  other,  and  both  ought 
therefore  to  be  held  within  its  provisions.  It  has  conse- 
quently been  considered,  that  an  exclusive  possession 
derived  under  a  contract  which,  as  between  the  parties 
themselves,  has  not  been  performed,  is  sufficient  to  ope- 

(e)  Horn  v.  Baker,  9  East,  215.     See  Storer  v.  Hunter,  3  B.  &  C. 
368. 

(/)  Ex  parte  Hargreaves,  1  Cox,  440.     S.  C.  6  Ves.  747. 


DISSOLUTION   BY   BANKRUPTCY,  275 

rate  a  conversion  of  the  property  if  the  meaning  of  the 
transaction  was  to  transmute,  and  possession  follows  ac- 
cordingly.(^)  And  in  a  late  case(/i)  it  was  observed 
by  Lord  Eldon^  "  If  one  partner  puts  another  into  the 
sole  possession  of  the  partnership  estate  and  effects,  and 
leaves  them  in  his  sole  order  and  disposition,  giving  him 
title  under  an  instrument,  upon  the  face  of  it  giving  title, 
it  would  be  difficult  to  insist  that  he  would  have  a  Hen 
upon  that  property,  for  the  consideration  money  against 
the  separate  creditors  of  the  other;  considering  that  he 
had,  by  title  and  his  own  act,  left  this  property  in  the 
sole  order  and  disposition  of  the  other."(l)  With  res- 
pect to  the  description  of  property  affected  by  the  statute, 
it  is  settled  that  no  distinction  exists  between  debts  due 
and  other  property;  for,  notwithstanding  debts  are  not 
assignable  at  law,  they  are  still  within  the  scope  of  the 
statute  ;{i)  and  where,  upon  the  dissolution  of  a  part- 
nership, they  have  been  assigned  by  some  of  the  partners 
to  the  others,  although  by  the  assignment  the  latter  be- 
come the  true  owners  of  them,  yet  they  will  remain  in 
the  order  and  disposition  of  the  partnership,  and  form 
part  of  the  joint  estate,  unless,  prior  to  the  bankruptcy, 
notice  of  the  assignment  has  been  given  to  the  debtors.(^) 
It  is  true  that  a  partner  stands  in  a  different  situation 
from  a  stranger,  to  whom  the  debts  might  have 
been  assigned ;  because  in  his  *character  of  part-  [*276] 
ner,  and  independently  of  any  assignment,  he  is 
personally  competent  to  receive  and  discharge  them ;  but 
it  is  also  true,  that  until  notice  be  given  to  the  debtors, 
the  other  partners  are  equally  competent  to  receive  and 
give  acquittances  for  whatever  may  be  due ;(/)  besides 
the  assignee,  by  receiving  the  assignment  without  inform- 

Ig)  Ex  parte  Fell,  10  Ves.  348.     Ex  parte  Williams,  11  Ves.  6. 

(h)  Ex  parte  Rowlandson,  1  Rose,  419. 

(i)  J^JxparfeRuffin,  6Ves.  128.  Ex parte'SVWYi^-Kis,  supra.  Horn- 
blower  V.  Proud,  2  B.  &  A.  329.     Ex  parte  Enderby,  2  B.  &  C.  389. 

{k)  Ryal  v.  Rowles,  1  Ves.  sen.  349.  S.  C.  1  Atk.  165.  Jones  v. 
Gibbons,  9  Ves.  407.     Ex  parte  Monro,  Buck,  300. 

(/)  Duffu.  East  India  Company,  15  Ves.  213. 


(1)  See  Lord  v.  Baldwin,  6  Pick.  Rep.  348. 


276  THE    CONSEQUENCES   OP   A 

ing  the  debtors  of  the  transaction,  would  enable  the  as- 
signor, if  he  were  so  disposed,  fraudulently  to  obtain  a 
fictitious  credit  with  the  debtors,  and  therefore  so  long 
as  notice  is  withheld  from  them,  the  order  and  disposi- 
tion must  remain  in  the  partnership.  Upon  this  princi- 
ple it  has  been  held  that  debts  due  to  a  partnership  which, 
upon  a  dissolution,  are  assigned  by  the  retiring  partners 
to  the  continuing  partner,(m)  or  debts  which,  by  agree- 
ment, on  a  dissolution,  belong  to  one  of  the  partners,(n) 
continue  in  the  order  and  disposition  of  the  partnership, 
and  consequently  to  form  part  of  the  joint  estate,  unless, 
previously  to  bankruptcy,  the  debtors  were  apprized  of 
the  assignment  or  agreement.  And  it  is  insufficient  in 
such  cases  to  notify  the  dissolution  only,  for,  unless  ex- 
press notice  of  the  assignment  be  given,  the  order  and 
disposition  will  not  be  altered.(o)  But  the  operation  of 
the  statute,  and  any  question  respecting  the  transmuta- 
tion of  the  property,  may,  in  all  cases,  be  avoided,  upon 
the  retirement  of  a  partner,  by  his  assigning  to  the  re- 
maining partner  all  the  effects  in  trust  to  pay  the  debts ; 
because  then,  notwithstanding  there  may  not  be  a  sub- 
sisting joint  possession,  the  property  would  continue  sub- 
ject to  the  joint  demands,  and  would  not,  by  the  simple 
fact  of  possession,  be  converted  into  separate  estate.(p) 
The  statute  of  James  is  not  repealed,  and  of  course  those 
sections  of  the  late  general  bankrupt  act,  in  which  the  pro- 
visions of  the  statute  of  James  have  been  embodied,  are 
not  rendered  inoperative,  as  to  shipping,  by  the 
[  *277  ]  *Ship  Register  Acts  ',{q)  for  these  statutes  relate 

(m)  Ex  parte  Burton,  1  Glyn  &  James,  207. 

(n)  ^a:^ar^e  Usborne,  ibid.  358. 

(o)  Ex  parte  Harris,  I  Madd.  587.  In  Ex  parte  Usborne,  supra,  a 
notice,  stating  the  dissolution  of  the  partnership  by  mutual  agreement, 
and  that  all  debts  due  to  or  from  the  concern  would  be  received  and  paid 
by  one  of  the  partners,  was  inserted  in  the  Gazette ;  but  Sir/oAn  Leach 
held  such  a  notice  ineffectual,  and  that  the  order  and  disposition  of  the 
debts  owing  by  those  debtors  who  had  not  express  notice  of  the  agree- 
ment, remained  in  the  partnership, 

{p)  Ex  parte  Fell,  10  Ves.  347.;  and  see  Ex  parte  Williams,  11 
Ves.  6.     Ex  parte  Martin,  19  Ves.  491.     S.  C.  2  Rose.  331. 

(5)  26  Geo.  3.  c.  60.  34  Geo.  3.  c.  68.  4  Geo.  4.  c.  41.  The  pro- 
vision in  the  6  Geo.  4.  c.  16.  s.  72,  that  nothing  therein  contained  shall 
invalidate  any  transfer  or  assignment  of  any  ship,  or  any  share  thereof, 


DISSOLUTION    BY    BANKRUPTCY.  277 

to  transfers  made  by  the  act  of  the  party  only,(r) 
viz.  from  a  former  owner  to  a  new  otvner,  and  where  the 
transfer  is  capable  of  being  effectuated  in  the  ordinary 
way,  by  the  mere  operation  of  an  instrument  of  assign- 
ment from  the  one  party  to  the  other,  and  do  not  relate  to 
transfers  deriving  their  effect  by  peculiar  provision  or 
operation  of  law,  as  assignments  by  commissioners  of 
bankrupt  to  assignees  under  the  bankrupt  laws  do,  or  titles 
passing  to  executors  or  administrators  in  case  of  death. 
In  these  cases  a  title  may  be  transmitted  without  any  of 
the  forms  required  by  the  statutes ;  and  as  a  title  may  be 
transmitted  without  these  forms  in  the  case  of  bank- 
ruptcy generally,  it  may  be  so  done  in  a  case  falling 
within  the  scope  and  object  of  the  statute  of  James.(^s) 
Therefore,  where  A,  the  owner  of  a  ship,  duly  assigned 
his  interest  in  it  to  B,  and  B  became  the  registered 
owner,  but  by  his  permission  A  continued  to  have  the 
same  in  his  possession,  order,  and  disposition,  until  he 
became  bankrupt,  it  w^as  holden  that  A's  assignees  were 
entitled  to  the  ship.(/)  And  under  a  commission  of 
bankruptcy  against  two  partners,  ships  registered  in  the 
name  of  one  of  them,  but  in  the  ordering  and  disposition 
of  both,  from  part  of  the  joint  estate.(t<)  On  the  same 
principle,  a  ship  registered  in  the  name  of  two  partners, 
but  which  is  left  in  the  order  and  disposition  of  one  of 
them,  will  pass  to  the  assignees  of  the  latter  on  his 
bankruptcy.(t;)  It  is  a  sufficient  compliance  with  the 
terms  of  the  registry  acts,  that  the  names  of  the  several 

made  as  a  security  for  any  debt,  either  by  way  of  mortgage  or  assign- 
ment, duly  registered  according  to  law,  seems,  independently  of  au- 
thority, to  admit  that  to  all  other  than  the  excepted  cases  the  enactment 
applies. 

(r)  Bloxham  v.  Hubbard,  5  East,  422. 

(s)  Robinson  v.  McDonnell,  5  Mau.  <fe  Selw.  228.  Hay  v.  Fair- 
bain,  2  B.  &  A.  193.  Monkhouse  v.  Hay,  2  Brod.  &  Bingli.  114. 
S.  C.  4  B.  Moore,  549.  8  Price,  256.  Mair  v.  Glennie,  4  Mau.  <fc 
Selw.  240.  Ex  parte  Hill,  and  In  re  Siiarpe,  Mont.  Dig.  of  New  De- 
cis.  in  Bank,  2d  part,  p.  85,  overruling  the  oases  of  Curtis  v.  Perry,  6 
Ves.  739.  Ex  -parte  Yallop,  15  Ves.  60.  Ex  parte  Houghton,  17 
Ves,  251.     S.  C.  1  Rose,  177. 

{t)  Hay  V.  Fairbarn,  and  Robinson  v.  McDonnell,  sitpra. 

\u)  Ex  parte  Burn,  1  Jac.  &;  Walk.  378. 

(»)  Kirklevi'.  Hodgson,  1  B.  &  C.  588. 

47 


277  THE    CONSEi^UENCES    OF    A 

owners  appear  on  the  registry,  without  its  being  there 
stated  in  what  proportions  they  are  interested.     Thus 

where  the  names  of  two  partners  in  trade  ap- 
[  *278  ]  peared  (amongst  others)  on  the  certificate  *of 

registry  as  owners  the  Court  of  King's  Bench 
determined,  that  the  registry  acts  did  not  prevent  the 
showing  how,  and  in  what  proportions,  the  several 
owners  were  respectively  interested  ;(1)  and  though  the 
partners  might  derive  title  under  different  conveyances, 
yet,  if  their  shares  were  purchased  with  the  partnership 
funds,  and  treated  by  them  as  partnership  property,  and 
the  partners  became  bankrupts,  they  were  to  be  consider- 
ed joint  property. (?z;) 

It  now  remains  to  be  inquired  whether  the  statute  ap- 
plies to,  and  in  what  cases  it  afTects  the  interest  a  dor- 
mant partner  may  possess  in  the  joint  estate.  It  was  for 
a  long  time  doubtful  M'hether,  where  a  dormant  partner 
suftered  the  ostensible  partner  to  appear  to  the  world  as 
sole  owner  of  the  whole  of  the  partnership  property,  and 
to  continue  as  such  owner  down  to  the  time  of  his  act 
of  bankruptcy,  the  share  or  interest  of  the  dormant  part- 
ner therein  was  to  be  considered  as  being  in  the  order 
and  disposition  of  the  ostensible  partner,  with  the  con- 
sent of  the  true  owner,  within  the  meaning  of  the  statute. 
In  the  first  case  on  this  subject,  which  came  before  Lord 
Hardwicke,  the  bankrupt  was  possessed  of  undivided 
property  as  tenant  in  common,  and  it  was  held  not  to  be 
such  a  possession  as  to  make  the  interest  of  the  other 
tenants  distributable  under  the  commission. (:r)  In  a  sub- 
sequent case(^)  an  issue  was  granted  to  try  the  question 
of  partnership,  and  the  result  does  not  appear ;  but  Lord 
Alvatiley,  then  Master  of  the  Rolls,  expressed  a  strong 
opinion  that  a  secret  partnership  did  not  prevent  the 

(w)  Ex  parte  Jones,  4  Maul.  andSelw.  450. 
(x)  Ex  parte  Flvn,   1  Atk.  185 ;  and  see  Mucklow  v.  Mangles,  1 
Taunt.  318. 

(y)  Binford  v.  Dommett,  4  Ves.  756. 


(1  Bixhy  V.  The  Franklin  Insurance  Company,  8  Pick.  Rep.  86. 
Colson  V.  Bonzey,  6  Greenl.  Rep.  474. 


DISSOLUTION  BY  BANKRUPTCY.  278 

operation  of  the  statute.     But  in  Coldwell  v.  Gregory{z) 
the  Court  of  Exchequer  expressly  decided  that  a  dormant 
partner  was  not  within  the  statute ;  and  therefore  that 
where  his  share  of  the  joint  property  was  suffered  to  re- 
main  in   the   custody  of  the  ostensible   partner   who 
became  bankrupt,  it  did  not  pass  to  his  assignees,  be- 
cause the  bankrup.  had  such  an  interest  and  qualified 
property  in  the  dormant  partner's  share  as  to  destroy 
the  essential  requisites  of  a  reputed,  as  distinguished  ' 
from  a  true  ownership.     This  latter  determination,  how- 
ever, did  not  meet  with  general  approbation,  and  its 
authority  was  much  shaken  by   what  fell   from    Lord 
Eldon  on  several  occasions.(a)     And  in  a  late 
*case,  the  Court  of  King's  Bench  determined   [*279  ] 
that  the  statute  did  extend  to  those  cases  of 
tenancy  in  common  in  which  the  bankrupt  tenant  in 
common  was  allowed  by  his  co-tenant  to  appear  to  the 
world  as  sole  owner  of  the  property,  and  to  use  it  for 
his  own  exclusive  advantage,  and  to  have  an  order  and 
disposition  of  it  which  could  only  be  consistent  with  a 
several  ownership.     There  the  sole  owner  of  a  ship  as- 
signed three  fourth  shares  of  it  to  a  creditor  as  security 
for  his  debt,  and  all  the   forms  required  by   the   Ship 
Registry  Acts,  as  to  the  transfer,  were  duly  complied 
with;  but  nothing  further  was  done  to  make  it  notorious 
to  the  world  that  there  had  been  any  such  assignment 
or  any  change  of  property ;  and  the  sole  owner,  down  to 
the  period  when  he  became  bankrupt,  was  suffered  to 
continue  as  apparent  owner  of  the  whole ;  and  it  was 
decided,  that  he  continued  to  be  the  apparent  owner  of 

(z)  1  Price,  119.     S.  C.  2  Rose,  149. 

(a)  See  Ex  parte  Barrow,  2  Rose,  254.  Ex  parte  Dyster,  ib.  256. 
In  re  Colbeck,  Buck,  53.  In  Smith  v.  Watson,  2  B.  &  C.  412.,  Best, 
J.,  alluding  to  the  objection  there  taken,  that  a  secret  partner  was  vir- 
tually excepted  out  of  the  statute,  observed,  "  I  cannot,  indeed,  readily 
conceive  any  case  more  completely  within  the  mischief  which  the  en- 
actment was  intended  to  remedy.  For,  if  a  secret  partnership  could  be 
set  up  as  an  answer  to  assignees  claiming  property  which  had  been  left 
in  the  order  and  disposition  of  the  bankrupt,  as  apparent  owner,  enor- 
mous debts,  unconnected  with  the  partnership  business,  might  be  con- 
tracted upon  the  credit  gained  by  the  possession  of  property,  which  a 
person  wholly  unknown  to  the  creditors  might  claim,  to  the  exclusion 
of  their  just  demands." 


279  THE    CONSEqUENCES    OF    A 

the  shares  assigned  with  the  consent  of  the  true  owner, 
and  therefore  that  those  shares  passed  to  his  assignees 
as  property  in  his  order  and  disposition.(6)  The  princi- 
ple of  this  decision  was  attempted  to  be  reconciled  with 
that  of  ColdweU  v.  Gregory^  by  distinguishing  between 
property  which  originally  belonged  to  the  bankrupt  and 
his  co-tenant,  although  the  whole  was  suffered  to  remain 
in  the  visible  possession  of  the  bankrupt,  and  that  of 
which  the  bankrupt  was  originally  the  real  and  sole 
owner,  and  so  apparently  continued  down  to  the  time  of 
his  bankruptcy,  notwithstanding  a  conveyance  by  him  of 
an  undivided  interest  in  the  property  to  a  third  person 
as  a  partner.(c)  But  this  distinction  appears  for  that 
purpose  to  be  unfounded ;  for  in  a  more  recent 
[  *280  ]  case  in  which  the  *property  in  dispute  was  origi- 
nally partnership  property,  and  was  originally  in 
the  controul  of  one  partner  alone,  and  so  continued  up 
to  the  date  of  his  bankruptcy,  the  same  court  decided 
that  it  was  a  case  not  only  within  the  words  of  the 
statute,  but  within  the  mischief  which  that  enactment 
was  intended  to  remedy,  and,  consequently,  that  the  de- 
termination of  the  Court  of  Exchequer  could  not  be  sup- 
ported. In  that  case  A  and  B  were  partners,  but  the 
whole  of  the  business  was  carried  on  by  and  in  the  name 
of  A,  B  never  appearing  to  the  world  as  a  partner;  and, 
at  the  dissolution  of  the  partnership  by  effluxion  of  time, 
all  the  partnership  stock  and  effects,  by  agreement  be- 
tween them,  were  left  in  A's  hands,  who  was  to  receive 
and  pay  all  the  debts  due  to  and  from  the  concern,  and 
to  repay,  by  instahnents,  the  capital  brought  in  by  B ; 
A  having  continued,  for  a  year  and  a  half,  to  carry  on 
the  business  as  before,  became  a  bankrupt,  and  it  was 
held,  that  all  the  partnership  property  and  effects  so  left 

(6)  Kirkley  r.  Hodgson,  1  B.  &  C.  588.  See  4  Geo.  4.  c.  41.  s.44. 

(c)  See  Lingard  v.  Messiter,  1  B.  &  C.  308.  In  this  case  a  distinc- 
tion was  drawn  between  those  cases  where  the  bankrupt  has  once  been 
the  owner  of  property,  and  where  he  has  not.  In  the  former  case,  it 
has  been  said,  that  the  mere  fiict  of  possession  may  raise  a  presumption 
that  he  continues  in  possession  as  reputed  owner;  but  that,  in  the  lat- 
ter, possession  might  not  of  itself  show  that  the  bankrupt  was  reputed 
owner,  and  that  it  would  then  be  necessary  for  the  assignees  to  estab- 
lish that  fact  by  other  evidence. 


DISSOLUTION  BY    BANKRUPTCY.  280 

in  A's  hands,  and  also  the  debts  due  to  the  concern, 
passed  to  his  assignees,  being  in  his  order  and  disposi- 
tion at  the  time  he  became  bankrupt.(rf)  And  the  fact 
of  the  dissolution  of  the  partnership  previously  to  the 
bankruptcy  of  the  ostensible  partner,  makes  no  differ- 
ence ;  for  it  has  been  determined,  that  where  a  firm  con- 
sists of  a  dormant  and  an  ostensible  partner,  and  the 
latter  becomes  a  bankrupt,  the  whole  property  will  pass 
to  his  assignees,  notwithstanding  the  partnership's  sub- 
sisting at  the  time  of  the  bankruptcy.(e) 

Under  o.  joint  commission  separate  creditors  will  be  al- 
lowed to  prove  their  debts  for  the  purpose  of  assenting 
to,  or  dissenting  from,  the  certificate ;(/)  but  they  cannot 
vote  in  the  choice  of  assignees ;  for,  by  the  statute,(^) 
only  those  creditors  can  vote,  who  are  entitled  to  prove 
their  debts,  by  right  under  the  act  of  parliament,  and 
without  an  order  of  the  Lord  Chancellor.  Formerly 
separate  creditors  could  not  prove  under  a  joint  com- 
mission, without  a  special  application  in  each  particular 
instance ;  and  although  Lord  Rosslyn  made  a  general 
order,(A)  allowing  them  in  every  case  to  prove,  yet  that 
does  not  bring  them  within  the  operation  of  the 
statute,  they  being  still  considered  as  coming  *in  [  *281  ] 
under  the  decree  or  order  of  a  court  of  equity.(i) 
If,  therefore,  the  separate  creditors  elect  assignees  under 
a  joint  commission,  the  Lord  Chancellor  will  order  a 
new  choice.(y^)  But  although  the  separate  creditors 
cannot  vote  in  the  choice  of  assignees,  yet  if  the  sepa- 
rate estates  are  insufficient  to  pay  the  separate  creditors, 
the  body  of  separate  creditors  will  be  permitted  to  ap- 
point an  inspector  of  those  estates,  on  the  ground  that 
the  joint  creditors  can  have  no  interest  in  them.(/) 

The  assignees,  under  a  joint  commission  of  bank- 
ruptcy, are  to  keep  distinct  accounts  of  the  joint  and 
separate  estates  of  the  bankrupts ;  and  where  there  are 

id)  Ex  parte  Enderby,  2  B.  &  C.  389. 
(e)  Smith  V.  Watson,  ibid.  401.  (/)  Whitm.  B.  L.  276. 

\g)  5  Geo.  2.  c.  30.     See  the  6  Geo.  4.  c.  16.  s.  61,  62. 
(/t)  See  ante,  p.  262. 

{i)  Ex  parte  Parr,  18  Ves.  65.  S.  C.  1  Rose,  76.  Ex  parte  Yizmer, 
1  Rose,  321.  Ex  parte  ie'^son,  I  Ves.  224. 

{k)  Id.  ibid.  {I)  Ex  parte  Batson,  1  Glyn  &  James,  269. 


281 


II 


THE    CONSEqUENCES    OF    A 


minor  partnerships,  the  accounts  of  the  respective  part- 
nerships must  be  kept  distinct  under  the  general  order.(m) 
The  joint  property  of  all  the  partners,  and  the  separate 
property  of  each,  both,  to  be  sure,  pass  under  such  a 
commission ;  but  they  do  not  form  the  same  fund,  and 
are  not  to  be  applied  to  the  same  purposes.  At  law  the 
separate  creditor  of  a  partner  may  take  either  the  sepa- 
rate property  of  his.  debtor,  or  his  debtor's  share  in  the 
joint  property,  or  both,  if  necessary ;  and  a  creditor  of 
the  partnership  may  take  the  whole  joint  property,  or 
the  whole  separate  property  of  any  one  partner.  Under 
a  commission,  however,  the  property  seized,  whether 
joint  or  separate,  is  no  longer  disposed  of  as  at  law ;  but, 
falling  immediately  under  the  administration  of  the  Court 
of  Chancery,  the  effects  are  subject  to  a  mode  of  distri- 
bution amongst  the  different  classes  of  creditors,  founded 
as  well  upon  the  equity  of  that  court,  as  upon  the  gene- 
ral intention  of  the  statutes,  that  all  creditors  should 
have  an  equal  satisfaction.  The  joint  creditors  having 
increased  the  joint  fund,  and  those  who  make  advances 
on  the  separate  credit  having  created  the  separate  fund, 
natural  justice  requires,  that  the  funds  so  constituted 
shall  be  applied  to  the  respective  demands.  It  has  ac- 
cordingly been  long  established  as  a  rule  of  that  court, 
that  where  there  are  different  sets  of  creditors,  each 
estate  shall  be  applied  exclusively,  in  the  first  instance, 
to  the  payment  of  it^  own  creditors,  the  joint  estate  to 
the  joint  creditors,  and  the  separate  to  the  separate ; 
and  that  neither  the  joint  creditors  shall  come  upon  the 
separate  estate,  nor  the  separate  upon  the  joint,  but  only 
upon  the  surplus  of  each  that  shall  remain  after 
[  *282  ]  each  *has  fully  satisfied  its  own  creditors  re- 
spectively. In  conformity  to  this  rule  of  distri- 
bution, separate  creditors  have  never  been  permitted  to 
come  in  directly  upon  the  joint  estate  along  with  the 
joint  creditors  ;  but  as  the  assignment  under  a  joint  com- 
mission is  of  the  whole  estate,  as  well  of  the  seperate 
estate  of  each  partner  as  of  the  joint  estate  of  all  the 
partners,  separate  creditors  have  always  been  allowed 

(m)  Lord  Loughborough'' s  order,  8th  March  1794.     Ex  parte  Wor- 
thington,  3  Madd.  26. 


DISSOLUTION    BY    BANKRUPTCY.  282 

to  prove  under  a  joint  commission,  for  the  purpose  of 
receivino-  dividends  from  tlie  separate  estate  in  the  first 
instance"  and  afterwards  from  the  surplus,  if  any,  of  the 
joint  estate  after  the  joint  creditors  are  satisfied.(n) 
Where  there  were  three  firms  commencing  at  different 
periods,  upon  the  bankruptcy  of  the  firm  in  which  they 
were  all  engaged,  the  Lord  Chancellor  ordered  distinct 
accounts  to  be  kept  of  the  difierent  partnerships,  and  of 
the  respective  separate  estates  of  the  bankrupts.(o)  But 
where  there  have  been  various  partnerships,  and  a  joint 
commission  is  taken  out  against  one  firm,  in  which  some 
of  the  parties  were  not  engaged,  there  can  only  be  the 
common  order  for  keeping  the  distinct  accounts  of  the 
joint  and  separate  estates.(;?) 

We  now  proceed  to  the  consideration  of  what  are  to 
be  deemed  joint,  and  what  separate  debts,  as  regulating 
the  proof  against  the  joint  estate  under  a  joint  commis- 
sion. It  may  be  laid  down  generally,  that  all  debts  are 
proveable  against  the  joint  estate  for  which  the  partner- 
ship was  liable.  Although  this  was  never  doubted,  a 
question  has  arisen  as  to  the  right  of  a  creditor  to  come 
upon  the  joint  estate,  where  he  has  taken  a  separate 
security  from  an  individual  partner.  It  is,  however,  set- 
tled, that  such  a  circumstance  makes  no  diflference  where 
the  credit  was  originally  joint.  Thus,  where  two  part- 
ners agreed  to  borrow  a  siim  of  money  for  the  use  of  the 
partnership,  and  one  of  them .  only  gave  a  bond  for  se- 
curing the  re-payment,  but  the  money  was  afterwards 
entered  in  the  cash-book  of  the  partnership;  a  joint 
commission  being  taken  out  against  them,  the  commis- 
sioners refused  to  admit  the  obligee  as  a  creditor  upon  the 
joint  estate  ;  but  Lord  King  was  of  opinion  he  ought  to  be 
admitted,  and  directed  accordingly.((/)  And  where  a  cre- 
ditor had  lent  money  to  two  partners  upon  their  joint 
notes,  and  upon  the  separate  bonds  of  each,  and  the 
whole  of  the  money  was  applied  to  the  use  of  the 
*partncrship,  consisting  of  them  and  several  [  *283  ] 
others,  and  the  partners  all  agreed  to  consolidate 

(n)  Cull.  B.  L.  b.  5.  c.  3.         (o)  Ex  parte  Marlin,  2  Bro.  C,  C.  15. 
\p)  Ex  parte  Parker,  Co.  B.  L.  249. 


\p)  Ex  parte  Parker,  Co.  B.  L.  249. 
{q)  Exports  Brown,  cited  1  Atk.225. 


283  THE    CONSEQUENCES    OF    A 

the  separate  debts,  and  to  consider  them  as  the  debts  of 
the  partnership,  Lord  Thurlow  permitted  the  creditor  to 
prove  the  whole  amount  against  the  joint  estate  of  the 
partnership.(r)  So,  in  a  more  recent  case,(5)  Lord  Eldon 
said,  that  where  money  is  raised  by  partners  for  partner- 
ship purposes,  by  means  of  bills  drawn  by  one  of  the 
members  of  a  partnership,  the  discounter  can  sustain  a 
claim  of  proof  against  the  joint  estate  in  respect  of  the 
money  received  by  the  firm,  although,  as  regards  the  bills 
themselves,  there  is  not  a  joint  legal  contract.  But  if 
the  credit  be  originally  separate,  the  debt  does  not  be- 
come joint  from  a  mere  subsequent  application  of  the 
funds  by  the  debtor  to  the  uses  of  a  partnership  of  which 
he  is  a  member.(^)  For  instance,  money  borrowed  by 
one  partner  to  pay  for  an  estate,  creates  only  a  separate 
debt ;  and  it  does  not  become  joint,  if  instead  of  being 
applied  in  payment  of  the  estate,  it  be  employed  in  dis- 
charging partnership  debts. (w)  So,  a  loan  of  money  to 
one  partner,  and  a  subsequent  loan  of  it  by  the  latter 
to  the  partnership,  does  not  alter  the  nature  of  the 
original  loan,  so  as  to  entitle  the  lender  to  consider 
himself  a  creditor  of  the  firm.(v)  And  where  bills 
drawn  by  one  partner  in  his  individual  name,  but  re- 
presenting   the  partnership,  were  accepted  by  a  dor- 

(r)  Ex  parte  Clowes,  2  Bro.  C.  C.  595.     S.  C.  Co.  B.  L.  260. 

[s)  Ex  parte  Bolitho,  Buck,  100. 

{{)  Ex  parfeEmly,  1  Rose.  65.  In  Ex  parte  Hunter,  1  Atk.  22a. 
Lord  Hardivicke  thought  that  the  mere  receipt  by  the  firm  was  suffi- 
cient to  enable  the  creditor  to  stand  in  the  place  of  the  partner  to  whom 
the  advance  was  actually  made ;  and,  in  his  right,  to  prove  against  the 
joint  estate.     But  it  seems  clear  that  the  law  in  this  case  was  mistaken. 

(u)  Ex  parte  Wheatley,  Co,  B.  L.  508,  9. 

{v)  Parkin  v.  Carruthers,  3  Esp.  N.  P.  C.  248.  In  Lloyd  v. 
Freshfield,  9  D.  &  R.  19.  S.  C.  2  C.  &  P.  325,  it  was  held,  that 
where  one  partner  borrows  money  on  his  own  private  credit,  though  he 
afterwards  apply  it  to  partnership  purposes,  the  lender  cannot  charge 
the  partnership  with  the  liability  of  the  single  partner.  And  in  Bevan 
V.  Lewes,  1  Sim.  376,  the  Court  of  Chancery,  on  the  ground  that  where 
money  is  borrowed  by  a  partner,  and  his  own  security  only  given,  it 
cannot  be  made  a  partnership  debt  by  being  applied  to  partnership  pur- 
poses, though  with  the  knowledge  of  the  other  partner,  determined  that 
such  a  security  constituted  the  creditor  joint  proprietor  only  with  the 
other  partner,  and  he  was  only  entitled  to  be  paid  out  of  the  partner's 
share  of  the  surplus,  after  satisfying  the  partnership  debts. 


DISSOLUTION    BY    BANKRUPTCY.  283 

mant  partner,  it  was  held  that  the  holder,  who  was 
ignorant  of  the  partnership,  was  entitled  to  prove  them 
against  the  separate  estates  but  not  against  the 
joint  estates ;  and  that,  having  proved  *against  [  '*284  ] 
the  joint  estate,  he  might  withdraw  that  proof 
and  be  admitted  a  creditor  on  the  two  separate  es- 
ta.tes.(w)  But  in  the  absence  of  proof  of  a  separate 
contract,  the  application  to  partnership  uses  of  money 
borrowed  by  one  partner,  is  evidence  to  show  that  the 
debt  is  joint.(jc)  And  although,  to  make  the  debt  joint, 
there  must  be  a  contract,  expressed  or  implied  by  the  firm, 
and  the  mere  receipt  of  the  money  is  not  sufficient  evi- 
dence from  which  to  imply  a  contract,  yet  the  justice  of 
the  case  being  that  the  firm  which  receives  the  money 
should  pay  the  real  proprietor,  qui  sentit  commodum  seniire 
debet  et  omis^  it  will  not,  perhaps,  be  the  cause  of  much 
astonishment  that  any  slight  circumstances,  in  addition 
to  the  receipt  of  the  money,  have  been  considered  suffi- 
cient from  which  to  raise  an  implied  contract.  Therefore 
in  a  case  where  a  sole  trader  became  indebted  by  bond, 
and  took  in  a  nominal  partner,  and  sometime  afterwards 
a  joint  commission  was  issued.  Lord  Thurlow  refused  to 
permit  the  separate  creditor  to  prove  against  the  joint 
estate.  But  he  said  that  if  any  interest  had  been  paid 
upon  the  bond  by  both,  he  should  have  considered  it  as 
adopting  the  debt,  and  making  the  partnership  liable  for 
it.(^)  And  the  courts  seem  to  favour  the  presumption 
of  the  adoption  by  a  new  firm  of  the  debts  of  the  old.(2') 
Thus,  where  new  partners  were  taken  into  a  trade,  and 
it  was  agreed  that  the  stock  of,  and  debts  due  to,  the  old 
firm,  should  become  the  capital  of  the  new  partnership, 
and  that  the  new  firm  should  take  upon  themselves  the 
payment  of  the  debts  of  the  old  firm,  and  the  new 
partnership  became  bankrupts,  the  creditors  of  the  old 
were  admitted  to  prove  as  joint  creditors  of  the  new 

{w)  Ex  parte  Husband,  2  Glyn  &  James.  4. 

[x\  Ex  parte  Clowes,  supra.     Ex  parte  Bonbonus,  8  Ves.  540. 

(y)  Ex  parte  Jackson,  1  Ves.jun.  131. 

(z)  Id.  ibid.     Ex  parte  Peele,  6  Ves.  604. 

48 


284  THE  CONSEQUENCES  OF  A 

firm.(a)  In  such  cases,  however,  there  must  be  some 
evidence  of  accession  on  the  part  of  the  creditors  to  the 
agreement  of  the  parties ;  because,  w^ithout  it,  there  can- 
not be  a  substitution  of  debtors.  Therefore,  where  A,  a 
trader,  being  indebted  to  several  persons,  entered  into  a 
partnership  with  B,  and  brought  his  stock  in  trade  into 
the  partnership,  and  by  the  articles  of  copartnership  it 
was  agreed  that  the  joint  trade  should  pay  those  creditors 
of  A  who  were  named  in  a  schedule  subjoined ;  it  was 

held  that  a  separate  creditor  of  A,  named  in  the 
[  *285  ]  ^schedule,  whose  assent  before  the  bankruptcy 

to  the  agreement  between  the  parties  could  not 
be  shown,  did  not  by  the  articles  become  a  joint  creditor 
of  A  and  B.(b)  Where  one  partner,  with  the  privity  of 
his  copartners,  applies  to  the  purposes  of  the  partnership 
money  with  which  he  is  separately  intrusted,  the  debt 
may  be  proved  against  the  joint  estate ;  but  if  the  appli- 
cation to  the  purposes  of  the  partnership  were  made 
without  the  knowledge  of  the  copartners,  the  debt  can 
only  be  proved  against  the  separate  estate  of  the  party 
guilty  of  the  misapplication.  The  former  part  of  this 
proposition  is  strongly  corroborated  by  a  recent  decision. 
There  one  of  three  partners  died  intestate,  leaving  a 
widow  and  infant  children,  and  the  widow,  having  ad- 
ministered, agreed  with  the  surviving  partners,  that  the 
intestate's  share  of  the  partnership  property  should  con- 
tinue in  the  firm,  of  which  she  constituted  a  member,  for 
a  term  of  years,  and  the  firm  became  bankrupts.  Lord 
Eldon  observed,  that  "the  administratrix  committed  a 
breach  of  trust  by  continuing  the  money  in  the  trade ; 
and  the  partners,  knowing  that  a  certain  proportion 
belonged  to  the  children,  who,  being  infants,  could  not 
contract,  held  the  money  on  the  only  terms  on  which 
they  could  hold  it  as  debtors  to  the  children ;  as  if  it  had 
been  placed  with  them  by  way  of  direct  loan.  If  it  had 
been  for  the  benefit  of  the  children  to  prove  against  the 

(a)  Ex  parte  Pcele,  supra.  Ex  parte  Bingham,  Co.  B.  L.  509. 
In  re  Staples,  ibid.     Ex  parte  Clowes,  supra. 

{h)  Ex  parte  Williams,  Buck,  13.  Ex  parte  Freeman,  ibid.  471 
Ex  parte  Fry,  1  Glyn  &  James.  96.  Sut  see  Mont.  Dig.  of  New 
Decis.  in  Bank.  2d  part,  p.  71,  and  3d  part,  p.  126. 


DISSOLUTION    BY    BANKRUPTCY.  285 

separate  estate  of  their  mother,  they  might  have  done  so ; 
but  it  did  not  follow  that  they  might  not  prove  under  the 
joint  commission  against  the  partnership,  having  pos- 
sessed the  property  of  the  infants  under  circumstances 
raising   a   clear   assumpsit. ''\c)      And  in   a   preceding 
case,(J)  where  one  of  two  partners  applied  trust-money 
in  the  trade,  with  the  privity  of  the  other  partner,  and 
they  afterwards  separated,  and  the  partnership  effects 
were  assigned  over  to  the  first,  who  undertook  the  pay- 
ments of  the  debts;   this  was  held  not  to  operate  the 
discharge  of  the  other  partner,  but  that  both  were  liable 
to  make  good  the  trust-money.     So,  if  a  sum  be  paid  to 
one  trustee  on  account  of  the  trust  fund,  and  he  lend  it 
upon  note  to  his  co-trustee,  and  both  the  trustees  become 
bankrupts,  the  debt  may  be  proved  under  each  commis- 
sion.(e)     But  the  liability  of  the  firm  in  these 
cases  *depends  on  the  knowledge  the  other  mem-  [  *286  ] 
bers  have  of  its  being  trust-money,  and  therefore 
if  one  partner,  being  a  trustee,  bring  trust-money  into 
the  trade  without  the  knowledge  or  privity  of  his  co- 
partner, it  cannot  be  proved  against  the  joint  estate  as  a 
joint  debt ;  for  although  the  partner  abuses  his  trust,  and 
advances  the  money  to  the  partnership,  it  will  not  raise 
a  contract  between  the  partnership  and   the  cestuique 
trusty   nor  convert  the  innocent  partners  into  implied 
trustees.(/) 

Where  a  creditor,  in  respect  of  the  contract  of  his 
debtors,  is,  at  law,  both  a  joint  and  a  separate  creditor, 
the  rule  in  bankruptcy  restrains  his  legal  rights,  and 
compels  him,  for  the  benefit  of  the  other  creditors,  to 
renounce  one  of  his  legal  characters.  He  must,  accord- 
ing to  the  rule  of  the  court  now  firmly  established,  make 
his  election,  in  the  first  instance,  whether  he  will  come  in 
upon  the  joint  or  the  separate  estate,  that  is,  against 
which  estate  he  will  prove  in  preference  ;  for  whichever 
he  may  elect,  he  will  be  entitled  to  participate  in  the 

(c)  Ex  parte  Watson,  2  Ves.  <fc  Bea.  414. 

{d)  Smith  V.  Jameson,  5  T.  R,  601. 

(e)  Keble  v.  Thompson,  3  Bro.  C.  C.  112. 

(/)  Ex  parte  Apsey,  3  Bro.  C.  C.  265.   Ex  parte  Heaton,  Buck,  386. 


286  THE    CONSEq,UENCES   OF    A 

surplus  of  the  other,  if  there  should  be  any.(  g)  Thus, 
where  a  joint  commission  was  taken  out  against  two 
partners,  and  the  petitioner  was  a  bond  creditor,  to  whom 
the  bankrupts  were  jointly  and  severally  bound;  it  was 
held  that  he  must  make  his  election  to  come  upon  the 
joint  or  separate  estate ;  if  he  elected  the  former,  he 
could  not  come  upon  the  latter  (and  so  vice  versa)  for 
the  surplus  of  the  debt,  until  the  creditors  of  the  separate 
estate  were  satisfied. (A)  And  Lord  Hardwicke  founded 
his  order  upon  this  reasoning,  that  the  bond  creditor 
might  have  brought  a  separate  action  at  law  against 
each  of  them,  and  might  have  had  likewise  separate  exe- 
cutions, but  could  not  have  levied  his  debt  upon  both  the 
estates  at  the  same  time,  but  only  for  the  deficiency, 
where  one  estate  was  not  sufficient  to  satisfy  the  whole. 
The  same  doctrine  is  established  in  many  other  cases.(2) 
Lord  Eldon,  however,  yielded  with  reluctance  to  this 
rule,  expressing  himself  dissatisfied  with  the  principle 
upon  which  it  rests.  In  one  case,(A:)  his  lordship,  allud- 
ing to  this  subject,  says :  "  The  reasoning  goes  upon  this, 

that  a  joint  and  separate  action  could  not  be 
[  *287  ]  brought  at  law.*     But  surely  the  distinction  is 

then,  that  where  a  joint  and  separate  bond  is 
given,  and  another  security,  several  from  each;  there, 
as  two  actions  might  be  brought,  the  rule  in  bank- 
ruptcy should  be  different."  And  upon  another  occa- 
sion,(/)  the  same  noble  and  learned  lord  observed,  "  In 
bankruptcy,  for  some  reason  not  very  intelhgible,  it 
has  been  said,  the  creditor  sfiall  not  have  the  benefit  of 
the  caution  he  has  used.  I  never  could  see  why  a  cre- 
ditor, having  both  a  joint  and  several  security,  should  not 
go  against  both  estates:  but  it  is  settled  that  he  must 
elect."  To  entitle  a  creditor  to  the  exercise  of  this  right 
of  election,  however,  it  is  necessary  he  should,  in  respect 
of  his  debt,  have  a  joint  claim  upon  all  the  partners,  if  he 

(g)  Co.  B.  L.  259.  (h)  Ex  parte  Banks,  1  Atk.  107. 

(i)  Ex  parte  Rowhndson,  3  P.  Wms.  405.  Ex  parte  Bond,  1  Atk. 
98.  Ex  parte  Blankenhagen,  Co.  B.  L.  259.  Ex  parte  Hay,  15 
Ves.  4.   Ex  parte  Masson,  1  Rose,  159.    Ex  parte  Liddel,  2  Rose,  34. 

(A)  Ex  parte  Bevau  9  Ves.  225.  (/)  S.  C.  10  Ves.  109. 


DISSOLUTION  BY  BANKRUPTCY.  287 

elect  to  prove  against  the  joint  estate,  or  a  several  claim 
upon  the  single  partner  against  whose  separate  estate  he 
may  declare  his  option  to  prove.     Therefore  where,  by 
deed,  the  stock  and  effects  of  a  partnership  were  assign- 
ed to  the  continuing  partner,  who  covenanted  to  pay  the 
joint  debts,  and  the  partners  afterwards  became  bank- 
rupts. Sir  John  Leach  held  that  the  joint  creditors  not 
having  previously  to  the  bankruptcy,  accepted  the  con- 
tinuing partner  as  their  sole  debtor,  had  not  an  election 
to  prove  against  his  separate  estate.(m)     So,  if  a  joint 
creditor  take,  as  a  collateral  security,  a  draft  from  a 
solvent  partner,   he  may  elect  whether  he  will  prove 
against  the  joint  or  separate  estate ;  but,  if  he  take  it  in 
discharge  of  his  joint  debt,  he  must,  as  it  seems,  prove 
against  the  separate  estate.(?i)     Where  the  right  of  elec- 
tion is  optional,  the  creditor,  in  order  to  make  it,  must 
have  a  reasonable  time  to  inquire  into  the  state  of  the 
different  funds,(o)  and  it  seems  that  he  is  entitled  to  de- 
fer his  election  until  the  assignees  are  possessed  of  a 
fund   sufficient   to   make  a  dividend.(/>)     In  one  case 
where  the  parties  were  assignees,  and  had  sufficient  funds 
for  a  dividend,  they  were  ordered  to  elect  in  six  weeks.(9) 
But  a  creditor  who  has  proved  against  one  es- 
tate will,  in  some  cases,  be  allowed  to  *with-  [*288] 
draw  his  proof,  and  prove  against  the  other  ;(r) 
and  although  he  has  received  a  dividend,  the  court  will 
permit  him  to  change  his  proof  upon  refunding  the  divi- 
dend he  received.(s)     So  the  petitioning  creditor  under 
two  commissions,  who  has  proved  under  one,  will  be  al- 
lowed to  alter  his  proof  under  the  other,  if  he  cannot  be 
said  to  have  deliberately  elected  in  the  first  instance.(^) 
But  a  creditor  having  once  elected  will  not  be  permitted 

(m)  Ex  parte  Freeman,  Buck,  471.     Ex  parte  Fry,  1  Glyn  &  James. 
96.     But  see  Mont.  Dig.  of  New  Decis.  in  Bank.  2d  part,  p.  71.,  and 
3d  part,  p.  126,  where  it  is  stated  that  the  case  Ex  parte  Freeman  was 
overruled  by  the  Lord  Chancellor  upon  appeal. 
[n)  Ex  parte  Roxby,  Mont,  on  Part.  124. 
(o)  Whistler  v.  Webster,  2  Ves.  jun.  371. 
hi)  Co.  B.  L.  259.     Ex  parte  Bond,  1  Atk.  98. 
\q)  Ex  parte  Butlin,  Co.  B.  L.  259. 
Ex  parteMz.son,  1  Rose,  159. 
Ex  parte  Rowlandson,  3  P.  Wms.  405. 
Ex  parte  Bolton,  2  Rose,  389.    S.  C.  Buck,  7. 


288 


THE  CONSEqUENCES  OF  A 


to  change  his  proof,  if  by  so  doing  he  disturb  a  dividend 
made  under  the  other  estate.(z<)  And,  except  under  spe- 
cial circumstances,  a  creditor  who  has  proved  against 
one  estate  will  be  compelled  to  retain  his  proof,  if  he  do 
not,  before  a  dividend  is  declared  of  that  estate,  signify 
his  election  of  abandoning  it  and  of  proving  against  the 
other  estate ;  for  otherwise,  to  the  extent  of  his  dividend, 
he  would  suspend  the  division  of  the  property  to  the  pre- 
judice of  the  other  creditors.(i;)  So  if  he  prove  against 
the  joint  estate,  and  sign  the  certificates,  he  cannot,  as  it 
seems,  vary  his  proof,  and  prove  against  the  separate 
estates.(2^)  And,  generally  speaking,  where  the  creditor 
has  done  acts  by  virtue  of  his  proof,  which  may  affect  the 
interest  of  others,  he  will  not  be  allowed  to  retract.(ar) 
A  joint  and  separate  creditor,  who  sues  out  a  separate 
commission,  and  proves  his  debt  under  it,  is,  upon  its 
being  superseded  in  consequence  of  the  awarding  of  a 
subsequent  joint  commission,  restored  to  his  right  of 
election  to  prove  against  the  joint  estate  and  he  has  also 
a  right  to  elect  out  of  which  estate  he  will  be 
[  *289  ]  *paid  the  cost  of  the  super sedeas.{y)  But  what- 
ever number  of  securities  he  may  have  taken 
from  the  bankrupts  for  the  debt,  if  he  elect  to  go  against 

(u)  Ex  parte  Beilby,  13  Ves.  70. 

(v)  ^a:  par/c  Husband,  5  Madd.  419.   ^a^joarteBentley,  2  Cox,  218. 

{w)  Ex  parte  Knott,  1  Mont.  B.  L.  243.  Ex  parte  kikmson,  Mont. 
Dig.  of  New  Decis.  in  Bank.  2d  part,  p.  90.  In  a  late  case  the  Vice- 
Chancellor  seems  to  have  been  of  opinion  that  a  joint  creditor  having 
been  a  party  to  a  petition  was  an  objection  to  the  transfer  of  proof.  Ex 
parte  Husband,  5  Madd.  419. 

{x)  Ex  parte  Solomon,  1  Glyn  &  James.  25.  But  see  Mont.  Dig. 
of  New  Decis.  in  Bank.  3d  part,"  p.  106.  n.  (a).  Where  a  creditor  had 
an  election  to  prove  against  the  joint  estate  or  the  separate  estate  of  one 
partner,  with  a  distinct  right  to  prove  against  the  separte  estate  of  the 
other  partner,  and  he  proved  against  the  joint  estate,  and,  without  voting 
in  the  choice,  was  elected  an  assignee  and  signed  both  certificates,  it 
was  held  that  he  might  transfer  to  the  other  separate  estate  the  debt 
which  he  had  proved  against  the  joint  estate,  if  the  deduction  of  the 
amount  of  the  debt  would  not  affect  the  certificate  of  the  other  bank- 
rupt, against  whom  he  had  proved  his  distinct  separate  debt,  although 
the  next  signature  on  the  certificate  may  have  been  influenced  by  his 
signature.  Ex  parte  Blackburn,  Mont.  Dig.  of  New  Decis.  in  Bank. 
3d  part,  p.  127. 

(y)  Ex  parte  Brown,  1  Ves.  &  Bea.  60.  S.  S.  2  Rose,  433.  Ex 
parte  Smith,  1  Glyn  &l  James.  256. 


DISSOLUTION    BY    BANKRUPTCY.  289 

one  estate,  and  there  is  a  surplus  from  the  estate  which 
he  rejects,  his  securities  will  give  him  no  preference  to 
the  other  creditors,  but  he  will  be  entitled  only  to  share 
the  surplus  pari  passu  with  them.(z)  In  a  recent  case  it 
was  held  that  joint  creditors  are  entitled  to  prove  against 
the  joint  estate  without  giving  up  securities,  or  renounc- 
ing the  separate  estate  of  a  deceased  partner.(«) 

To  this  rule  of  election  there  are  exceptions^  which, 
upon  a  close  examination  of  the  cases,  it  will  be  found 
extremely  difficult  to  reconcile  and  arrange.  In  the  first 
place  it  seems  clear,  and  is  admitted  by  all  the  authori- 
ties, that  a  creditor  will  not  be  put  to  his  election,  where 
the  same  persons  are  concerned  in  several  firms,  and 
issue  bills  drawn  by  all  the  partners  upon  a  distinct  firm 
constituted  of  some  of  them,  and  the  creditor  without 
notice  of  their  joint  connection  takes  such  a  bill.  Thus, 
where  there  was  a  partnership  of  four,  two  of  whom 
were  engaged  in  a  separate  trade,  and  the  two  others  in 
another  separate  trade,  one  of  these  minor  firms  accept- 
ed bills  drawn  by  the  other,  and  the  holder,  who  had  no 
knowledge  that  they  were  also  one  firm,  was  allowed  to 
prove  against  the  respective  joint  estates.(6)  So,  where 
A,  B,  and  C  were  partners  in  one  concern,  and  A  and 
B  in  another  distinct  trade,  the  holder  of  a  bill  drawn  by 
C,  and  indorsed  by  A  and  B,  was,  on  the  ground  of  his 
Ignorance  of  the  connection  of  the  three  in  one  partner- 
snip,  determined  to  be  entitled  to  prove  against  the  joint 
estate  of  A  and  B,  and  the  separate  estate  of  C.(c)  And 
the  recent  case  of  Ex  parte  Adam{d)  is  to  the  same 
effect,  viz.  five  persons  in  one  firm,  drawing  a  bill  upon 
two  engaged  in  a  distinct  firm,  the  holder  having  no 
notice  of  the  connection  of  the  parties.  But  in  one  in- 
stance the  circumstance  of  the  party  taking  the  bill 
having   a  knowledge    of  the  joint  connection   seems 

(z)  Ex  parte  Bevan,  10  Ves.  107. 

\a)  Ex  parte  Peacock,  2  Glyn  &  James.  27. 

\b)  Ex  parte  La  Forest,  Co.  B.  L.  261. 

(c)  Ex  parte  Benson,  Co.  B.  L.  263.  In  re  Burton,  cited  8  Ves. 
546. 

{d )  2  Rose,  36.  S.  C.  1  Ves.  &  Bea.  493.  In  the  latter  report 
the  circumstance  of  the  holder  being  ignorant  that  the  parties  were  con- 
nected in  one  firm  is  omitted.     See  1  Mont.  Dig.  118. 


290  THE    CONSECIUENCES    OF    A 

[  *290  ]  to  have  *been  disregarded,  and  the  holder 
of  a  security  who  had  notice  that  the  parties 
were  engaged  in  one  lirni  was  allowed  to  prove  against 
both  estates,  although  the  firms  of  the  parties  to  the  bill 
were  distinct.  Thus,  where  A  a  sole  trader,  B  and  C 
partners,  and  D  also  a  sole  trader,  had  engaged  in  a 
joint  adventure,  and  for  a  joint  purchase  of  goods  by 
them,  the  vendor,  with  a  knowledge  of  their  joint  iritercst, 
received  in  payment  a  bill  drawn  by  A  on  and  accepted 
by  B  and  C,  and  Lord  Eldon  held,  that  on  the  bank- 
ruptcy of  A  and  of  B  and  C,  the  vendor  was  entitled  to 
prove  the  bill  against  both  their  estates.(e)  Where, 
however,  there  are  not  distinct  firms,  but  one  of  a  part- 
nership has  drawn  upon  the  firm,  and  the  holder  has 
taken  the  security  with  notice  that  such  person  was  in- 
cluded in  it,  he  will  not  be  entitled  to  double  proof. 
Thus,  where  a  creditor  who  knew  of  the  general  partner- 
ship, but  where  there  was  no  distinct  firm,  insisted  upon 
the  indorsement  of  one  of  them  upon  a  bill  drawn  by 
them  all,  for  the  purpose  of  raising  a  contract  for  double 
security,  the  court  thought  that  he  was  not  entitled  to 
prove.(/)  And  in  the  previous  case  of  ex  parte  Bigg(g) 
which  was  a  bill  drawn  by  A  upon  a  firm  which  consist- 
ed of  himself  and  four  others,  it  was  held  that  the  holder, 
having  had  notice  that  the  drawer  was  a  member  of  the 
firm,  was  not  entitled  to  a  double  proof.  Whether  the 
holder  of  a  bill  without  notice  of  the  fact  that  the  parties 
liable  upon  it  are  not  separate  firms,  but  parts  of  one 
firm  adopting  several  liabilities  upon  the  instrument, 
would  be  put  to  his  election,  has  not  yet  been  deter- 
mined ;  but  it  may  be  collected,  from  the  judgment  of 
Lord  Eldon  in  the  last  cited  case,  that,  in  his  opinion, 
the  circumstance  of  the  parties  to  the  bill  being  not  dis- 
tinct firms,  would,  if  it  had  been  necessary  to  decide  the 
question,  have  influenced  him  materially ;  and  therefore 
it  seems,  upon  the  whole,  probable  that  he  would  be 
bound  to  elect.(A) 

It  was  long  doubted,  whether,  if  a  firm  be  indebted  to 

(e)  Ex  parte  Wenslay,  2  Ves.  &  Bea.  254.     S.  C.  1  Rose,  441. 
(/)  Ex  parte  Bank  of  England,  2  Rose,  82.  (  g)  Ibid.  37. 

{h)  See  Eden's  B.  L.  174. 


DISSOLUTION    BY    BANKRUPTCY.  290 

one  of  the  partners,  the  creditors  on  the  separate  estate 
of  that  partner  should  be  admitted  as  creditors  on 
the  partnership  estate^  in  competition  with  the  joint 
creditors ;  Lord  Hardwicke  conceived  and  held,(i)  that 
where  money  had  been  lent  to  the  partnership 
*by  a  partner,  who  afterwards  became  bank-  [  *291  ] 
rupt,  the  separate  creditors  of  the  latter  might 
prove  the  amount  of  the  loan,  as  a  debt  against  the  joint 
estate.  Lord  Thurlow^  however,  thought  differently,  and, 
in  a  subsequent  case,(Q  decided  that  proof  could  not, 
under  such  circumstances,  be  made :  on  the  principle 
that  the  equities  of  the  creditors,  whether  joint  or  sepa- 
rate, must  be  worked  out  through  the  medium  of  the 
partners,  and  that  it  was  a  clear  and  well-established 
rule  that  the  individual  partner  could  not  himself  prove 
against  the  joint  estate  in  competition  with  the  creditors 
of  the  firm,  who  were  in  fact  his  own  creditors,  and 
thereby  take  part  of  the  fund  to  the  prejudice  of  those 
who  were  not  only  creditors  of  the  partnership,  but  of 
himself.  Therefore,  where  there  was  a  joint  commission 
against  two  partners,  and  a  separate  commission  against 
one  of  them,  and  the  assignees  under  the  separate  com- 
mission petitioned  to  be  admitted  creditors  under  the 
joint  commission,  for  a  sum  of  money  brought  by  the 
bankrupt  whom  they  represented  into  the  partnership 
beyond  his  share,  and  as  being  therefore  a  creditor  upon 
the  partnership  for  that  sum ;  Lord  Thurlow  refused  it, 
on  the  ground  that  proof  of  a  debt  due  to  an  individual 
partner  could  not  be  allowed  to  come  in  conflict  with  the 
proofs  of  the  joint  creditors. (/)  The  rule  introduced  by 
Lord  Thurlow  has  been  in  many  cases  acted  upon,  and 
has  been  confirmed  by  Lord  Eidon.(m)  It  was  thus 
concisely  stated  by  his  lordship  on  a  recent  occasion  :(n) 
"If  one  partner  lend  £1000  to  the  partnership,  and  they 
become  insolvent  in  a  week,  he  cannot  be  a  creditor  of 

(i)   Ex  parte  Vlnnler,  1  Atk.  223. 

{k)  Ex  parte  Lodge,  Co.  B.  L.  505.     S.  C.  1  Ves.  jun.  166. 

{I)  Ex  parte  Burrell,  Co.  B.  L.  503.     Ex  parte  jParkev  and  Ex 
parte  Pine,  ibid. 

(m)  ^.r  parte  Reeve,  9  Ves.  589.     Ex  parte  Adams,   1  Rose,  305. 
Ex  parte  Harris,  ibid.  438.     Ex  parte  S'iWiioe,  1  Glyn  &  James.  382. 

(n)  Ex  parte  Harris,  2  Ve«.  &  Bea.  212. 

49 


291  THE  CONSEqUENCES  OF  A 

the  partnership,  though  the  money  was  supphed  to  the 
joint  estate ;  that  is,  no  proof  can  be  admitted  to  affect 
the  creditors ;  though  the  individual  partners  may  cer- 
tainly have  the  right  against  each  other."  But  although 
in  cases,  the  result  of  contract,  in  which  the  joint  is  in- 
creased at  the  expense  of  the  separate  estate,  the  funds 
are  administered  as  they  are  constituted  at  the  time  of 
the  bankruptcy,  yet  there  are  circumstances  under  which 
the  separate  creditors  will  be  permitted  to  prove,  against 
the  joint  estate,  a  debt  due  from  the  partnership  to  the 

individual  partner.  To  induce  a  relaxation  of 
[  *292  ]  the  rule,  *however,  it  must  be  made  out  that  the 

separate  effects,  creating  the  debt,  were  obtained 
from  the  separate  to  augment  the  joint  estate,  either  by 
actual  fraud,  or  under  circumstances  from  which  the  law 
will  imply  fraud :  and,  in  a  legal  sense,  every  appropria- 
tion by  the  firm  as  contradistinguished  from  a  taking 
either  by  contract  or  loan  is  considered  fraudulent,  if  it 
be  made  without  the  express  or  implied  authority  of  the 
individual  partner.(o)  And  where  a  joint  commission 
issued  against  A  and  B,  and  A  being  a  dormant  partner 
the  joint  creditors  resorted  to  the  separate  estate  of  B, 
thereby  diminishing  that  separate  estate,  and  exonerat- 
ing the  joint  estate  of  A  and  B,  so  as  to  produce  a  sur- 
plus of  it,  Lord  Eldon  held  that  the  separate  creditors 
of  B  had  a  lien  upon  that  surplus,  to  the  extent  which 
their  funds  had  been  diminished  by  the  resort  of  the 
joint  creditors. (^j)  A  partner  in  a  banking  firm,  who, 
after  getting  his  certificate,  had  taken  up  the  notes  of 
the  firm,  has  been  permitted  to  prove  against  the  joint 
estate. (9') 

Another  relaxation  of  the  rule,  that  a  partner  cannot 
prove  against  a  firm,  is  admitted  where  there  is  a  minor 
partnership  or  house  of  trade  constituted  of  persons  who 
are,  members  of  a  larger  firm^  and  there  are  distinct  deal- 
ings between  the  distinct  houses  of  trade,  and  both  firms 
become  bankrupt,  the  one  being  indebted  to  the  other  in 

(0)  Ex  por/e  Harris,  ante.     Ex  parte  Yonge,  3  Ves.  &  Bea,  31. 
S.  C.  2  Rose,  40.     Ex  parte  Cust,  Co.  B.  L.  506. 
(p)  Ex  parte  Reed,  2  Rose,  84. 
{q)  Ex  parte  Atkins,  Buck,  479. 


DISSOLUTION    BY    BANKRUPTCY.  292 

respect  of  such  dealings ;  in  such  a  case  proof  may  be 
made  for  the  debt,  in  the  same  manner  as  if  the  deahngs 
had  been  among  strangers.(r)     But  the  question,  what 
is  a  deahng  in  a  distinct  trade,  is  always  to  be  looked 
at  with  great  care,  for  the  proof  is  admissible  on  behalf 
of  the  separate  trade  against  the  aggregate  firm  only  in 
respect  of  dealings  between  trade  and  trade.    If  an  mdi- 
vidual  partner,  who  is  a  separate  trader,  lend  money  to 
his  partnership,  the  strict  rule  immediately  applies  to 
him,  and    shuts  him   out   from  the  benefit   of  proof; 
for  if  it  were  sufficient  to  state,  in  order  to  bring  the 
case  within  the  exception,  that  the  partner  would  not 
have  lent   the   money  but  as   a   separate  trader,   the 
general  rule  would  be  at  an  end.     It  is  obvious,  there- 
fore, that  the  right  of  proof  must  be  confined  to 
*distinct  dealings  in  the  articles  of  distinct  trades,  [  *293  ] 
since  a  more  extended  relaxation  of  the  rule 
would,  in  its  consequences,  lead  to  the  destruction  of  the 
rule  itself.     Therefore,  where  two  partners  of  a  large 
banking  firm  carried  on  a  separate  trade  as  ironmongers, 
and  a  debt  arose  from  the  aggregate  firm  to  the  separate 
trade,  in  respect  of  moneys  procured  for  the  benefit  of 
the  aggregate  firm,  on  the  credit  of  the  indorsement  of 
the  separate  firm.  Lord  Eldon  held  that  no  proof  could 
be  made  on  behalf  of  the  firm  of  the  two  against  the 
aggregate  firm  in  respect  of  that  debt.(s)     And  if  the 
firm  consist  of  two  persons  only,  and  one  carry  on  a  se- 
parate trade,  as  they  are  both  liable  for  the  same  joint 
debts,  the  solvent  partner  is  not  entitled  to  prove,  under 
the  commission  against  his  co-partner,  a  debt  for  goods 
sold  by  his  distinct  house  to  the  firm,  until  the  joint  cre- 
ditors have  been  satisfied.     It  would  be  otherwise  in  the 
case  of  a  firm  of  A,  B,  C,  and  D,  proving  against  a  firm 
of  A,  B,  C,  and  E ;  for  the  former  would  not  be  liable  for 
the  joint  debts  of  the  latter  firm.(0     So  if  the  concern 

(r)  Ex  parte  Hargreaves,  1  Cox,  440.  S.  C.  cited  6  Ves.  123, 747., 
and  11  Ves.  414.  Ex  parte'^xng.  Ex  parte  Freeman,  Ex  parte  Johns, 
Co.  B.  L.  509.  Ex  parte  St.  Barbc,  11  Ves.  413.  Ex  parte  Hes- 
ham,  1  Rose,  146.     Ex  parte  Catesby,  2  Christ.  B.  L.  286. 

(s)   Ex  parte  Sillitoe,  1  Glyn  &  James.  374. 

[t)  Ex  parte  Adams,  1  Rose,  305. 


293  THE  CONSEQUENCES  OF  A 

carried  on  by  one  partner  is  merely  a  branch  of  the  joint 
concern,  proof  will  not  be  permitted.(?^)  But  where  some 
of  the  members  of  a  partnership  carried  on  different 
concerns  under  separate  and  independent  firms,  and  be- 
came mutually  indebted  the  one  firm  to  the  other,  it  was 
held  that  proof  might  be  equally  made  by  the  one  firm 

against  the  other.(v) 
[  *294  ]       *When  a  joint  commission  is  taken  out,  the 

creditors  of  the  separate  estates  are  not  entitled 
to  interest  upon  their  debts  after  the  payment  of  twenty 
shillings  in  the  pound,  unless  the  joint  creditors  have  re- 
ceived the  principal  of  their  debts  in  full ;  but  the  over- 
plus of  the  separate  estates  must  be  applied  to  increase 
the  joint  fund.(z^)  And  if,  under  a  joint  commission, 
both  the  joint  and  separate  creditors  receive  the  full 
amount  of  the  principal  of  their  debts,  and  there  is  a 

(u)  Dx parte  St.  Baibe,  11  Ves.  413. 

(u)  Ex  parte  Castell,  2  Glyn  &  James.  124.  In  Mr.  Eden's  able 
Treatise  on  the  Bankrupt  Laws,  p.  170,  it  is  observed  that  "the  ge- 
neral rule  respecting  the  proof  by  partners  must,  it  should  seem,  be 
considered  as  limited  to  the  right  of  receiving  dividends,  upon  which  it 
is  but  justice  that  a  partner,  who  is  himself  liable,  should  not  be  per- 
mitted to  take  any  of  the  funds  before  the  creditors  are  paid.  But  as  to 
the  mere  right  of  proof,  there  is,  strange  to  say,  no  determination  what- 
ever, and  we  are  informed  by  Mr.  Montagu,  that  the  practice  of  the 
commissioners  is  not  to  permit  a  partner  to  prove.  1  Mont.  Dig.  245. 
The  reasons  which  he  gives  in  favour  of  such  proof  are,  however, 
so  satisfactory,  that  whenever  the  point  comes  to  be  determined,  it 
should  seem  that  there  is  no  doubt  of  the  right  to  prove,  reserving  the 
right  to  receive  dividends  till  the  taking  of  the  partnership  accounts. 
For  1st,  This  is  an  equitable  debt,  and  therefore  proveable.  2dly,  It 
may  be  contended,  it  is  a  debt  under  Sir  S.  Romily's  act.  And  3dly,  a 
partner  would  be  barred  by  the  certificate  of  his  copartner.  Mr.  Mon- 
tagu justly  adds,  that  if  it  is  supposed  to  be  unjust  that  a  partner  should 
prove,  when  by  payment  by  the  bankrupt  partner,  the  solvent  partner 
may  ultimately  be  a  debtor,  instead  of  a  creditor,  it  is  not  right  to  ex- 
tend this  reasoning  from  cases  where  the  possibility  exists,  to  cases 
where  its  existence,  as  often  happens,  is  impossible." 

{w)  Ex  parte  Boardman,  Co.  B.  L.  198.  S.  C.  1  Cox,  275.  Ex 
parte  Clarke.  4  Ves.  677.  Ex  parte  Boyd,  1  Glyn  &.  James.  285. 
Ex  parte  Minchin,  2  Gl.  &  Jam.  287.  Where,  after  satisfying  both 
joint  and  separate  creditors,  there  is  a  surplus,  it  is  provided  by  the  late 
general  bankrupt  act,  6  Geo.  4.  c.  16.  s.  132,  that  it  shall  not  be  paid 
over  to  the  bankrupts  until,  first,  interest  has  been  paid  on  those  debts 
which,  either  by  law  or  by  contract,  carry  interest;  and  secondly,  until 
interest,  at  the  rate  of  four  per  cent.,  has  been  paid  upon  all  other  debts 
proved  under  the  commission. 


DISSOLUTION    BY    BANKRUPTCY.  294 

debt  due  to  the  separate  estate  of  one  partner  from  the 
joint  estale,  the  creditors  upon  the  joint  estate  will  be 
entitled  to  interest  upon  their  debts  subsequently  to  the 
date  of  the  commission,  to  be  paid  out  of  the  surplus  of 
the  joint  estate;  upon  this  principle,  that  neither  the 
partnership  nor  the  individual  partner  can  claim  in  com- 
petition with  the  creditors ;  and  if  the  creditors  are  en- 
titled to  any  interest,  the  interest  is  as  much  a  debt  as 
the  principal ;  and  that  principle  will  prevent  either  the 
partnership  or  the  individual  debtor  ranking  with  the 
other  creditors,  until  the  whole  of  their  demand  is  satis- 
fied.(a;)  It  has  already  been  stated  that  where  there  is 
a  surplus  upon  the  joint  estate,  after  payment  of  all  the 
joint  creditors,  the  separate  creditors  of  each  partner 
have  a  lien  upon  that  surplus,  and  it  must  be  adminis- 
tered amongst  them.(.y)  And  where  a  man  is  a  partner 
in  separate  firms,  each  of  which  becomes  bankrupt,  the 
surplus  of  his  separate  estate  will  be  applied  in  discharg- 
ing the  joint  debts  of  the  firms,  in  proportion  to  the  whole 
amount  of  the  debts  proved  against  each  firm  respec- 
tively.(2') 

The  creditors  may  agree  that  the  joint  and  separate 
estates  of  the  bankrupt  shall  be  blended,  and  the  joint 
and  separate  creditors  paid  pari  passu,  as  if  they  were 
all  creditors  of  the  same  class;  and  if  all  the  creditors 
of  each  description  are  unanimous,  the  court  will  or- 
der a  consolidation  of  the  two  estates.  But 
*where  a  meeting  of  the  joint  and  separate  ere-  [  *295  ] 
ditors  had  been  called  by  advertisement,  and  the 
creditors  present  at  the  meeting  had  agreed  to  a  con- 
solidation, the  court  refused,  by  acting  upon  their  reso- 
lution, to  bind  the  interest  of  the  absent  creditors  of  both 
classes,  but  directed  a  reference  to  the  commissioners  to 
inquire  if  the  proposed  consolidation  was  for  the  general 
benefit.(r/) 

Nothing  particular  occurs  with  regard  to  the  certificates, 

(x)  Ex  parte  Reeve,  9  Ves.  188. 

(y)  Ex  parte  King,  17  Ves.  115.  In  re  Wait.  1  Jac.  &  Walk.  610. 
[z)  Ex  parte  Franklyn,  Buck,  332.     Ex  parte  Bruce,  Whitm.  B. 
L.  353.     Ex  parte  Barron,  ibid.  354. 

(«)  Ex  parte  Strult,  I  Glyu  &  James,  29. 


295  THE    CONSEQUENCES    OF    A 

or  their  operation,  when  several  are  included  in  the  same 
commission.  If  they  are  obtained  agreeably  to  the  di- 
rections of  the  statute,  they  are  of  course  bars  against 
all  creditors,  whether  they  have  signed  or  not ;  but  the 
creditors  will  not  be  deprived  of  their  remedy  against 
the  bankrupts,  if  the  certificates  have  been  procured  by 
means  which  the  legislature  has  reprobated.  In  the 
case  of  Norton  v.  Shakspeare,(b)  a  deed  of  composition, 
framed  only  for  the  joint  creditors  of  two  bankrupts,  and 
which  was  signed  by  seven  joint  creditors  out  of  ten, 
but  not  by  any  of  the  separate  creditors  of  one  of  the 
bankrupts,  was  held  not  such  a  "  compoimditig  with  his 
creditors,"  as  would,  within  the  meaning  of  the  statute 
5  Geo.  2.  c.  30.  s.  9.,(c)  avoid  the  effect  of  a  subsequent 
certificate  under  a  commission  of  bankrupt,  to  protect 
the  future  estate  and  eflfects  as  well  as  the  person  of  one 
of  the  bankrupts,  who  was  afterwards  sued  to  judgment, 
and  had  execution  levied  on  his  goods  by  one  of  his  sepa- 
rate creditors.  But  if  the  deed  be  framed  in  terms 
embracing  all  the  creditors,  although  some  of  them  do 
not  come  in,  but  afterwards  sue  the  bankrupt  and  obtain 
payment  of  their  debts,  it  is  such  a  compounding  with 
creditors  as  will,  under  the  statute,  deprive  the  bankrupt 
of  the  benefit  of  his  certificate  to  protect  his  future 
efrects.(c?)  If  a  commission  against  partners  be  super- 
seded as  to  one  or  more  of  them,  a  certificate  subse- 
quently obtained  by  the  partner,  as  to  whom  the  com- 
mission is  not  ordered  to  be  superseded,  is  not  affected 
by  the  super sedeas.(e)  Where  a  joint  certificate  was 
duly  signed  by  the  creditors,  and  one  of  the  bankrupts 
died  before  the  commissioners  certified  their  conformity, 

but  the  commissioners  afterwards  certified  that 
[  *296  ]  the  bankrupts  *had  conformed,  and  that  one  of  . 

the  bankrupts  died  without  having  made  the 
usual  affidavit  of  conformity ;  upon  the  petition  of  the 
surviving  bankrupt,  the  Lord  Chancellor  ordered  that  the 
joint  certificate  should  be  inserted  in  the  Gazette,  as  the 

(&)  15  East,  619.  Curling  v.  Oakley,  cited  1  Selw.  N.  P.  (5th  ed.) 
250.     S.  P.  (c)  See  6  Geo.  4.  c.  16.  s.  127. 

(rf)  Slaughter  v.  Cheyne,  1  Mau.  <fe  Selw.  182  ;  and  see  Reed  v. 
Sowerby,  3  Mau.  &  Selw,  78.  (e)  6  Geo.  4.  c.  16.  s.  16. 


DISSOLUTION    BY    BANKRUPTCY.-  296 

separate  certificate  of  the  petitioner,  and  that  the  same 
should  be  allowed  and  confirmed,  if  no  cause  should  be 
shown  to  the  contrary,  as  such  separate  certificate. (y) 

After  their  certificate  has  been  regularly  signed  and 
allowed  by  the  Lord  Chancellor,  and  a  final  dividend 
has  been  made,  the  bankrupts  under  joint,  as  under  sepa- 
rate commissions  of  bankruptcy,  are  entitled  to  a  decent 
and  reasonable  allowance  out  of  their  eftects.(o-)  Part- 
ners, however,  under  a  joint  commission,  are  not  entitled 
to  a  double  allowance,  one  in  respect  of  the  joint,  and 
the  other  of  the  separate  estate ;  but  one  allowance  only 
in  respect  of  their  joint  and  separate  eftects  is  to  be  di- 
vided between  them,  according  to  the  proportiojis  which 
the  surplus  of  each  of  their  separate  estates,  after  pay- 
ment of  their  respective  separate  debts,  and  the  respec- 
tive moieties  of  their  joint  estate,  have  contributed  to  the 
payment  of  their  joint  debts.(/i)  And  in  determining  the 
question /of  allowance  the  joint  and  separate  estates  are 
not  to  be  considered  as  distinct,  and  as  if  two  commis- 
sions had  issued ;  but  the  two  estates  are  to  be  blended, 
to  consider  whether  one  allowance  is  to  be  made.  There- 
fore, a  bankrupt  under  a  joint  commission  was  held  not 
to  be  entitled  to  an  allowance,  though  his  joint  estate 
had  paid  ten  shillings  in  the  pound,  unless  both  joint  and 
separate  creditors  who  had  proved  had  been  paid  the 
same  dividend. («)  So  where,  under  a  separate  commis- 
sion against  one  partner  and  the  usual  order  for  keeping 
distinct  accounts,  the  joint  estate  paid  eighteen  shillings 
in  the  pound,  and  the  separate  estate  only  two  shillings  in 
the  pound,  the  bankrupt  was  held  not  entitled  to  an  allow- 
ance, on  the  ground  that  the  payment  to  the  joint  cre- 
ditors was  not  a  payment  under  the  bankruptcy,  but 
was  a  mere  mode  of  arrangement  which  could  not  give 
the  bankrupt  any  other  privileges  than  what  he  would 
liave  been  entitled  to  if  his  joint  property  had   been 

(/)  Ex  parte  Currie,  10  Ves.  51.  S.  P.  Ex  parte  Cosszxi,  1  Glyn 
«St  James.  248;  and  see  Bromley  v.  Goodere,  1  Atk.  77. 

(^)  See  6  Geo.  4.  c.  16.  s.  128. 

(/i)  Ex  parte  Bate,  1  Bro.  C.  C.  453.     S.  C.  Co.  B.  L.  488. 

(i)  Ex  parte  Powell,  1  Madd.  68.  See  also  Ex  parte  Stiles,  1 
Atk.  208. 


297  THE    CONSEqUENCES    OF    A 

[*297]  ^distributed  under  the  direction  of  a  court  of 
eqiiity.(/^')  And  a  bankrupt  who  pays  twenty 
shillings  in  the  pound,  under  a  separate  commission  to 
his  separate  creditors,  is  not  entitled  to  an  allowance 
against  the  right  which  the  joint  creditors  have  to  the 
surplus  under  the  usual  order.(/)  With  respect  to  the 
allowance  under  a  joint  commission,  it  was  formerly 
considered  that  it  could  only  be  claimed  jointly ;  and, 
therefore,  that  if  one  partner  solely  obtained  his  certifi- 
cate he  was  not  entitled  to  it,  so  long  as  his  copartner 
remained  uncertificated.(m)  This,  however,  has  subse- 
quently been  remedied  by  a  legislative  provision,(w) 
which  declares,  that  "  in  all  joint  commissions,  under 
which  any  partner  shall  have  obtained  his  certificate,  if 
a  sufficient  dividend  shall  have  been  paid  upon  the  joint 
estate,  and  upon  the  separate  estate  of  such  partner,  he 
shall  be  entitled  to  his  allowance,  although  his  other 
partner  or  partners  may  not  be  entitled  to  any  allow- 
ance." And  in  the  construction  of  this  act  it  has  been 
held,  that  where  the  separate  estate  of  one  of  three  part- 
ners had  paid  twenty  shillings,  and  the  surplus  carried 
to  the  joint  estate,  ,on  which  twelve  shillings  and  six- 
pence had  been  paid,  he  was  entitled  to  his  sole  use  to 
the  allowance,  although  upon  the  separate  estates  of  the 
other  partners  a  sufficient  dividend  had  not  been  paid, 
the  new  act  showing  the  legislature  to  have  contemplat- 
ed the  separate  payment  of  each  partner's  allowance ; 
but  such  allowance  is  not  payable  until  the  final  dividend 
is  made.(o) 

Sometimes  it  happens  that  one  partner  only  commits 
an  act  of  bankruptcy,  while  the  others  remain  perfectly 
solvent ;  in  which  case,  a  separate  commission  can  alone ' 
be  supported  against  the  party  committing  the  act  of 
bankruptcy. 

As  to  the  trading  and  act  of  bankruptcy  requisite  to 


{k)  Ex  parte  Farlow,  2  Ves.  &  Bea.  209.  S.  C.  1  Rose,  421.  Ex 
parte  Terrell,  Buck,  345. 

(/)    ^a^parie  Holmes,  3  Ves.  &  Bea.  137.     S.  C.  2  Rose,  95. 

(m)  Ex  parte  Powell,  1  Madd.  62.        (n)  6  Geo.  4.  c.  16.  s.  129. 

(o)  Ex  parte  Minchin,  1  Mont.  &  M.  135;  and  see  Ex  parte 
Goodall,  2  Glyn  &  James.  281. 


DISSOLUTION    BY    BANKRUPTCY.  297 

ground  a  separate  commission,  it  can  make  no  difference 
whether  a  person  carries  on  business  with  others  or  by 
himself.  With  respect  to  the  petitioning  creditor's  debt, 
it  was  questioned  in  a  case,  in  which  the  point  was 
most  elaborately  discussed,(/>)  whether  a  joint 
*debt  due  from  all  the  partners  would  support  a  [  *298  ] 
separate  commission  against  one  of  them ;  and 
on  the  principle  that  a  joint  creditor  might  at  law  pro- 
ceed by  execution  against  separate  estate,  the  question 
was  then  settled  in  the  affirmative,  and  is  now  indis- 
putable.(<7)  But  a  debt  due  from  one  partner  to  another, 
where  the  accounts  -have  not  been  balanced  and  adjust- 
ed, is  not  a  sufficient  foundation  for  a  commission  ;  al- 
though Lord  Eklon  thought  that  had  the  partnership 
been  determined,  and  had  the  solvent  partner  paid  all 
the  debts,  a  commission  might  have  been  supported.(r) 
And  in  a  late  case  where  the  petitioning  creditors  had 
all  been  in  copartnership  with  the  bankrupt  in  a  contract 
to  supply  provisions  for  the  use  of  the  navy,  and  the  af- 
fairs of  the  contract  had  not  been  settled,  Lord  Ellenho- 
rough  intimated  that  if  the  debt  of  the  petitioning  credi- 
tors arose  out  of  the  partnership  concerns,  it  was  insuffi- 
cient.(5)  But  where  the  proprietor  of  goods  intrusted 
them  to  a  trader  to  sell,  upon  an  agreement  that  after 
deducting  the  cost  price  of  the  goods,  the  interest  of 
money,  and  all  charges,  the  profits  should  be  equally  di- 
vided, and  after  a  sale  and  appropriation  of  the  profits 
the  trader  was  indebted  to  the  proprietor  in  more  than 
one  hundred  pounds,  it  was  ruled  that  this  was  a  good 
petitioning  creditor's  debt.(/) 

A  separate  commission  against  one  partner  followed  by 
an  adjudication  that  he  is  a  bankrupt,  puts  an  end  to  the 

(p)  Crisp  V.  Pen-it,  WiUes,  467.     S.  C.  1  Atk.  133. 

(q)  Ex  parte  Elton,  3  Ves.  239.  Ex  parte  Chandler,  9  Ves.  35. 
Ex  parte  Ackerman,  14  Ves.  004.  Ex  parte  Dewdney,  15  Ves.  499. 
Ex  parte  Lavender,  18  Ves.  19. 

(r)  Ex  parte.  Nokes,  1  Mont.  B.  L.  21,  605.  See  also  West  v. 
Skip,  1  Ves.  sen.  239.  S.  C.  2  Swanst.  586.  Ex  parte  Maberley, 
Mont,  on  Part.  p.  63,  in  notes. 

(s)   Windham  v.  Paterson,  1  Stark.  N.  P.  C.  144. 

[t)   Marson  v.  Barber,  Gow's  N.  P.  C.  17. 

50 


298  THE  CONSliqUENCES  OF  A 

partnership ;  and  the  share  or  interest  of  the  bankrupt 
partner  in  the  partnership  effects,  upon  the  execution  of 
the  assignment  by  the  commissioners,  vests  in  his  as- 
signees. The  effect  of  the  bankruptcy  is  to  dissolve  the 
partnership,  and  to  avoid  all  the  acts  of  the  bankrupt 
from  the  day  of  the  bankruptcy.(l)  It  severs  the  joint- 
tenancy  ;  and  the  assignees  of  the  bankrupt  partner  be- 
come tenants  in  common  with  the  solvent  partner  in  the 
partnership  effects,  subject  to  all  the  rights  of  the  lat- 

ter,(w)(2)  but  according  to  the  doctrine  of  courts 
[*299]  *of  equity,  perhaps,  with  equities  in  them  vastly 

beyond  what  tenants  in  conmion  have  where  no 
bankruptcy  has  occurred. (u)     We  will  in  the  first  place 

{u)  Fox  V.  Hanbury,  Cowp.  448.  Hague  v.  Rolleston,  4  Burr. 
2174.  Ex  parte  Smith,  5  Ves.  295.  It  has  been  ruled  by  Lord  Ch. 
J.  Holt,  that  if  there  be  four  partners,  whereof  three  are  bankrupts,  and 
their  shares  assigned,  and  a  payment  is  made  to  him  that  was  no  bank- 
rupt, it  is  a  payment  to  all  the  assignees;  for  now  they  are  all  partners. 
Anon.  12  Mod.  447. 

[v]  Per  hord  Eldon,  Barker  u.  Gcodair,  11  Ves.  85.  Assignees 
under  a  separate  commission  of  bankruptcy  against  one  partner,  cannot, 


(1)  The  plaintiff  was  in  partnership  with  one  Roioley,  as  insurance 
brokers.  Upon  the  3d  of  April,  1771,  they  caused  an  insurance  to  be 
made  on  the  ship  Anna  Maria,  belonging  to  the  defendants,  by  their 
order,  which  policy  was  underwrote  by  Robert  Cornthiuaite,  for  100/. 
and  the  premium  acknowledged  to  be  received  in  the  usual  way  upon 
the  policy.  The  premium  was  not  in  fact  paid,  but  credit  was  given  to 
the  brokers  in  the  usual  way  till  the  settling  day,  which  was  usually 
soon  after  Christmas.  In  November,  1771,  Rowley,  who  carried  on  a 
single  trade  singly  a  sa  Scotch  factor,  became  a  bankrupt,  and  a  sepa- 
rate commission  issued  against  him,  and  in  September,  1772,  the  plain- 
tiff paid  the  whole  premium  to  Cornthivaite,  and  brought  an  action  in 
his  own  name  against  the  defendants,  the  insured,  to  recover  the 
amount.  The  declaration  contained  counts  for  work  and  labour,  and 
money  paid,  laid  out,  and  expended ;  and  the  plaintift"  obtained  a  ver- 
dict at  Nisi  Frius  before  Sir  fVilliam  Henry  Ashurst,  subject  to  the 
opinion  of  the  Court  of  King's  Bench  upon  a  case  stating  the  above 
facts,  the  question  being  whether  the  plaintiff  was  entitled  to  maintain 
the  action  ?  The  Court  was  of  opinion,  that  the  money  not  being  paid 
until  a  year  after  the  bankruptcy  of  plaintiff''s  partner,  was  not  paid  out 
of  the  partnership  effects,  but  out  of  the  separate  estate  of  the  plaintiff, 
and  was  therefore  money  paid  for  defendant's  use,  and  gave  judgment 
for  the  plaintiff.  Thacker  v.  Shepherd  et  al.  2  Chitt.  iiep.  652.  See 
the  argument  of  Mr.  Jirden  for  the  plaintiff. 

(2)  Murray  v.  Murray,  5  Johns.  Cha.  Rep.  60. 


II 


DISSOLUTION    BY    BANKRUPTCY.  299 

consider  the  effect  of  an  assignment  under  a  separate 
commission,  and  what  property  passes  by  it  to  the  as- 
signees. 

A  separate  commission  being  a  statute  execution 
against  both  separate  and  joint  estate,  the  assignees  take 
under  it  all  the  separate  property  of  the  bankrupt^  and  all 
his  interest  in  the  joint  property  ;(w)  {I)  the  extent  of 
which  interest  is  exactly  the  same  as  that  which  vests  in 
a  separate  creditor  of  one  partner  by  a  judgment  at 
law,  taking  execution  against  the  partnership  effects. 
The  interest  of  the  solvent  partner  is  not  affected  by  the 
execution  in  the  one  instance,  (x)  nor  by  the  bankruptcy 
in  the  other.(?/)  In  the  case  of  an  execution,  the  sheriff, 
though  he  may  seize  the  whole  of  the  joint  property,  can 
sell  only  an  undivided  moiety ;  and  the  vendee  becomes, 
gtioad  the  interest  of  the  indebted  partner,  tenant  in 
common  with  the  solvent  partner,  taking  only  the  undi- 
vided share  of  the  debtor,  subject  to  all  the  rights  of  the 

without  the  consent  of  every  person  interested  in  the  estate,  engage  in 
any  new  adventure  with  the  solvent  partner.  15  Ves.  228. 

[w)  Ex  parte  Cobham,  1  Bro.  C.  C.  576.  Ex  parte  Hodgson,  2 
Rro.  C.  C.  5.  Horsey's  case,  3  P.  Wms.  23.  Bolton  v.  Puller,  1 
Bos.  &  Pul.  539.     Ex  parte  Earned,  1  Glyn  &,  James.  311. 

(x)  Heydon  v.  Heydon,  1  Salk.  392. 

(y)  Taylor  v.  Fields,  4  Ves.  396.  S.  C.  15  Ves.  559.  n.  In  the 
case  of  Barker  v.  Goodair,  1 1  Ves.  85,  Lord  Eldon,  after  alluding  to 
the  question  whether  a  separate  creditor,  taking  a  moiety  of  a  chattel 
in  execution,  may  call  for  a  sale  of  it  and  divide  the  money,  or  whether 
a  court  of  equity  would  not  force  upon  him  the  whole  account  of  the 
partnership,  permitting  him  only  to  take  that  interest  which  the  part- 
ner, his  debtor,  would  have  been  entitled  to  after  the  account,  adds, 
"but  we  have  gone  much  greater  lengths  in  bankruptcy  as  to  that,  and 
even  in  the  absence  of  the  other  partner.  In  bankruptcy,  after  one 
partner  has  become  bankrupt,  I  do  not  recollect  that  a  joint  creditor 
was  ever  permitted  to  bring  an  action,  and  by  an  execution  fasten  upon 
a  moiety  of  the  effects.  On  the  contrary,  in  the  absence  of  the  solvent 
partner,  we  say,  the  assignees  shall  take  the  solvent  property,  and  deal 
with  it  as  the  partner  himself  ought  to  have  dealt  with  it,  paying  all 
the  joint  creditors  equally  as  far  as  the  joint  properly  goes,  and  apply- 
ing the  surplus  under  all  the  equities  subsisting  between  the  partners." 
See  also  Button  v.  Morrison,  17  Ves.  209. 


(\)   Harrison  v.  Sierry,  5  Cranch.  289.     See  page  302,  the  point 
is  not  as  fully  stated  in  the  marginal  abstract  of  the  case  as  it  should  be. 


299  THE    CONSEQUENCES    OF    A 

Other,  and  to  the  account  to  be  taken  between  them  as 
partners.  So,  in  the  case  of  bankruptcy,  the  as- 
[  *300  ]  signees  under  *a  separate  commission  can  affect 
the  joint  property  no  farther  than  the  bankrupt 
himself;  they  have  no  right  to  change  the  possession, 
or  to  make  any  specific  division  of  the  effects ;  they 
take  only  such  undivided  share  or  interest  as  the  bank- 
rupt himself  had,  and  in  the  same  manner  as  he  held  it, 
that  is,  subject  to  all  the  rights  and  liens  of  the  other 
partner,  and  they  are  entitled  only  to  that  balance  which 
is  ascertained  to  be  due  to  the  bankrupt,  after  the  part- 
nership debts  and  the  claims  of  the  solvent  partner  are 
satisfied,  and  a  division  is  made  of  the  surplus. (2^)  But, 
whatever  his  interest  is,  the  assignees  are  entitled  to  it 
specifically,  and  no  agreement  made  between  the  part- 
ners themselves,  in  contemplation  of  bankruptcy,  can 
prevent  their  right  from  attaching.  Thus  in  a  late 
case(«)  it  appeared  that  articles  of  partnership  had  pro- 
vided, that  on  a  dissolution  by  the  death,  notice,  or  mis- 
conduct of  a  partner,  the  remaining  partners  should 
have  the  option  of  taking  his  share  at  a  valuation,  paya- 
ble by  yearly  instalments  in  the  course  of  seven  years; 
and  that,  on  the  bankruptcy  or  insolvency  of  a  partner, 
the  partnership  should  be  immediately  void  as  to  him ; 
but  by  a  deed,  executed  four  years  subsequently,  the 
partners  declared,  after  a  recital  that  such  was  their  in- 
tention in  the  articles,  that  in  the  event  of  bankruptcy  or 
insolvency,  the  same  arrangement  should  be  practised 
as  on  dissolution  by  death,  notice,  or  misconduct;  one 
of  the  partners  having  become  bankrupt  within  a  few 
months  after  the  execution  of  the  latter  deed,  it  was 
held,  that  his  assignees  were  not  bound  by  it.  Had  such 
a  provision  been  contained  in  the  original  articles  of 
partnership,  it  seems  doubtful  whether  it  would  not  have 
been  void,  as  being  contrary  to  the  policy  of  the  bank- 

{z)  In  Hoklerness  v.  Shaekels,  8  B.  &,  C.  618.  Lord  Tenterden 
observed  that  it  is  clearly  established  as  a  general  principle  of  law,  that 
if  one  partner  becomes  a  bankrupt,  his  assignees  can  obtain  no  share  of 
the  partnership  effects,  unless  they  first  satisfy  all  that  is  due  from  him 
to  the  partnership. 

(a)  AVilson  v.  Greenwood,  1  Swanst.  471.  S.  C.  1  J.  Wilson,  223. 


DISSOLUTION    BY    BANKRUPTCY.  300 

rupt  laws.  For,  although  the  owner  of  property  may, 
on  alienation,  qualify  the  interest  of  his  alienee,  by  a 
condition  to  take  effect  on  bankruptcy,  yet  it  seems  that 
he  cannot,  by  contract  or  otherwise,  qualify  his  own  inte- 
rest by  a  like  condition,  determining  or  controlling  it  in 
the  event  of  his  own  bankruptcy,  to  the  disappointment 
or  delay  of  his  creditors ;  the  jus  disponendi  which,  for 
the  first  purpose,  is  absolute,  being  in  the  latter  instance 
subject  to  the  disposition  previously  prescribed 
by  law.(6)  *And  if  one  partner  advance  part  of  [  *301  ] 
his  share  of  the  expense  of  an  adventure,  and 
give  his  notes  for  the  remainder,  which  do  not  become 
due  until  after  he  is  declared  a  bankrupt,  the  assignees 
are  entitled  to  his  full  share  of  the  profits  of  the  adven- 
ture, notwithstanding  the  holders  of  the  notes  receive 
only  a  dividend  under  the  commission ;  and  the  solvent 
partners  cannot,  by  voluntarily  discharging  the  notes, 
stand  in  the  place  of  the  bankrupt,  for  any  proportion  of 
the  profits  to  which  he  would  have  been  entitled.(c)  So, 
if  one  partner  mortgages  all  his  interest  in  the  partner- 
ship stock  to  the  other  members  of  the  firm,  or  to  a  per- 
son in  trust  for  them,  and  afterwards,  and  until  he  be- 
comes bankrupt,  continues  to  act  as  a  partner,  without 
delivering  exclusive  possession  of  the  stock  to  the  mort- 
gagee, the  share  so  mortgaged  is  distributable  under 
the  commission,  as  the  separate  property  of  the  bank- 
rupt.(6/)  And  where  two  persons,  on  entering  into  part- 
nership, agreed  that  the  manufactory  and  utensils  in 
trade  should  be  the  separate  property  of  one  of  theni, 
and  that  the  other  should  pay  a  rent  in  proportion  to  his 
share  of  the  business,  and  the  manufactory  and  utensils 
being  insured  in  the  name  of  the  true  owner,  they  were 
subsequently  consumed  by  fire,  and  afterwards  a  com- 
mission of  bankruptcy  issued  against  both,  it  was  held 
that  the  insurance  money  formed  part  of  the  separate 
estate  of  the  insured,  and  was  unaffected  by  the  sta- 

(6)  See  1  Swanst.  481.  n. 

(c)  Smith  V.  De  Silva,  ('owp.  469.  See  the  observations  of  Lord 
Tenterden  on  this  case,  in  Holderness  v.  Shackels,  8  B.  <fc  C.  618. 

(d)  Rvall  V.  Rowles,  1  Ves.  sen.  348.  S.  C.  1  Atk.  16.5.  1  Wils. 
260.  Hall  V.  Gurnev,  Co.  B.  L.  333.  JEx  parte  Standgrooni,  ibid. 
337.     S.  C.  2  Cox,  234. 


m 


301  THE  CONSEqUENCES    OF    A 

tute.(e)  We  have  already  explained,  (/)  that  where  a 
firm  consists  of  a  dormant  and  an  ostensible  partner,  and 
the  latter  becomes  bankrupt,  the  whole  joint  property 
will  pass  as  his  separate  estate  under  the  statute  of 
James,  and  of  course  that  it  will  so  pass  under  the  late 
general  bankrupt  act,  in  which  the  provisions  of  the  for- 
mer statute  have  been  embodied. (^)  This,  in  some 
instances,  bears  hard  upon  the  dormant  partner,  who  may 
be  called  upon  to  pay  the  partnership  debts,  at  the  same 
time  that  he  is  deprived  of  all  the  partnership  property 
acquired  by  the  contracting  those  debts ;  but  as  the 
world  naturally  gives  credit  to  the  ostensible  partner  on 
his  reputed  property,  and  as  the  statute  was  particularly 

directed  to  remedy  the  mischief  arising  from  a 
[  *302  ]  ^trader's  holding  out  a  delusive  responsibility,  it 

follows  that  the  person  who  permits  him  to  exhibit 
that  false  appearance  should  be  answerable  for  the  con- 
sequences. And  with  respect  to  the  two  classes  of 
creditors,  no  injustice  or  inconvenience  will,  generally 
speaking,  result  to  them.  The  separate  creditors,  who 
trusted  the  ostensible  partner  on  the  faith  of  his  appa- 
rent ownership  of  the  property,  have  the  primary  claim 
to  it,  and  justly  so,  for  otherwise  there  might  not  be  any 
fund  to  which  they  could  resort  for  payment ;  whilst  the 
joint  creditors  will  be  entitled  to  any  surplus  that  may 
remain  after  satisfying  the  separate  creditors,  and  will 
also  have  their  remedy  against  the  dormant  partner  for 
the  whole  or  any  part  of  the  partnership  debts.  Where 
a  sole  trader  agreed,  in  consideration  of  a  sum  payable 
by  instalments,  to  take  two  persons  into  partnership  with 
him  for  a  period  of  eighteen  years,  and,  after  they  were 
admitted,  the  firm  became  bankrupt  whilst  some  of  the 
instalments  remained  unpaid,  it  was  determined  that, 
unless  the  bargain  was  ab  initio  a  mere  fraud,  the  instal- 
ments must  be  paid  as  they  became  due :  for,  upon  ad- 
mission, the  whole  price  became  debiium  in  prcesenti, 
although  solvendum  in  futuro.  In  equity,  as  well  as  at 
law,  such  a  contract  is  performed,  on  one  side,  by  admis- 

(e)  Ex  parte  Smith,  3  Madd.  63.     S.  C.  Buck,  149. 

(/)  See  ante,  p.  278. 

(g)  See  the  G  Geo.  4.  c.  16.  s.  72. 


DISSOLUTION    BY    BANKRUPTCY.  302 

sion ;  and  the  consideration  must  be  paid  by  the  other 
side.  The  loss  is  not  a  breach  of  contract,  but  a  con- 
tino-ency,  subject  to  which  the  party  purchased :  and  if 
no  provision  was  made  for  such  an  event  by  the  agree- 
ment, equity  can  give  no  rehef  It  might  be  otherwise 
if  the  party  had  been  drawn  into  the  bargain  by  fraud 
and  misrepresentation  :(A)  for  though,  even  in  such  fraud- 
ulent case,  the  injured  party  could  not  be  allowed  to 
prove  in  competition  with  the  creditors  of  the  firm,  in 
respect  of  the  instalments  actually  paid  ;(i)  yet  payment 
of  the  future  instalments  could  not  be  enforced.(A)  If, 
after  an  act  of  bankrupty  committed  by  one  partner,  the 
solvent  partners  continue  to  trade  with  the  joint  capita], 
they  must  account  to  the  assignees  for  the  bankrupt's 
share  of  the  profits  derived  from  such  trading.(/)  And 
on  this  principle,  upon  an  exception  to  a  master's  report, 
stating  the  capital  and  stock  in  trade  of  a  partnership  to 
cpnsist,  at  the  time  of  the  bankruptcy  of  one  of  the  part- 
ners, of  the  estimated  value  of  the  dead  stock  em- 
ployed in  it,  *it  was  referred  back  to  him  to  state  [*303  ] 
what  was  the  amount  of  the  capital,  and  also  of  the 
stock  in  trade  at  the  time,  in  order  to  adjust  the  amount  of 
subsequent  profits  to  which  the  assignees  of  the  bankrupt 
partner  were  entitled,  as  against  the  other  partners,  who 
continued  to  trade  with  the  partnership  property  after 
the  bankruptcy.(m)  But  where  by  contract,  custom,  or 
previous  usage  between  partners,  in  particular  adven- 
tures, the  share  of  each  is  subject  to  the  lien  of  the  other 
partners,  for  his  proportion  of  the  outfit  and  of  the  ex- 
pense, no  partner  or  representative  of  a  partner,  has  a 
right  to  his  aliquot  part  of  the  subject-matter  of  the  ad- 
venture, until  he  has  paid  his  share  of  the  expense  of 

{h)  Akhurst  v.  Jackson,  1  Swanst.  85.     S.  C.  1  J.  Wils.  57. 

(i)    Ex  parte  Broome,  1  Rose,  69. 

{k)  Hamcl  v.  Stokes,  4  Price,  166.     S.  C.  1  Daniel,  20. 

(/)  Crawshay  v.  Collins,  15  Ves.  218. 

(m)  S.  C.  I  Jac.  &  Walk.  267.  Where  the  stock  at  the  time  of  the 
bankruptcy  of  one  of  the  partners,  consisted  partly  of  patents,  the  be- 
nefit of  which  were  continued  by  the  solvent  p-.irtners,  the  court  held, 
under  the  circumstances,  that  the  assignees  were  entitled  to  share  in  the 
profits  at'tcr  the  bankruptcy,  until  the  final  settlement  and  account,  al- 
lowances being  made  for  advances  of  capital  subsequently  brought  in 
by  the  solvent  partners.     S.  C.  2  Russ.  325. 


303  THE    CONSEQ.UENCES    OF    A 

procuring  it;  and,  consequently,  if  one  becomes  bankrupt 
without  having  paid  such  share,  his  assignees  cannot 
recover  from  the  other  partners  his  proportion,  vt^ithout 
a  previous  tender  of  the  amount  of  such  share.  Thus, 
in  a  recent  case,  it  appeared,  that  A,  B,  and  C,  together 
with  others,  were  part  owners  of  a  ship  engaged  in  the 
whale  fishery.  The  usual  mode  of  managing  the  cargo 
was,  that  on  the  arrival  of  the  vessel  at  her  homeward 
port,  the  whalebone  was  taken  into  the  possession  of  B 
and  sold  by  him,  and  the  proceeds  were  applied  towards 
the  discharge  of  the  expenses  of  the  ship.  The  blubber 
was  deposited  in  a  warehouse  rented  of  C,  by  the  owners 
of  the  ship,  and  the  oil  produced  from  it  was  then  put 
into  casks,  each  owner's  share  being  weighed  out,  and 
placed  separately  in  the  warehouse,  in  casks  marked 
with  his  initials.  After  the  division,  the  practice  was  for 
the  warehouseman  to  deliver  to  the  order  of  each  part- 
owner  his  share  of  the  oil,  unless  notice  was  given  by 
the  ship's  husband  that  the  part  owner's  share  of  the 
disbursements  had  not  been  paid ;  and,  in  that  case,  the 
w^arehouseman  used  to  detain  the  oil  till  the  ship's  hus- 
band's demand  had  been  satisfied.  The  ship  having 
arrived  from  her  voyage  in  1825,  the  above  course  was 
followed.  The  share  weighed  out  and  set  apart  for  C 
was  twenty  nine  tons,  which  was  stowed  in  the  ware- 
house in  casks,  which  had  A's  initials  put  on  them.  In 
January^  1826,  A  became  bankrupt.     Twenty  tons  of 

the  oil  had  been  delivered  to  him  before  his 
[  *304  ]  ^bankruptcy ;  the  remaining  nine  tons  remained 

in  the  warehouse  at  that  time.  In  the  same 
month  the  warehouseman  had  orders  from  C,  the  ship's 
husband,  not  to  deliver  to  A  the  remaining  oil,  as  his 
share  of  the  disbursements  of  the  ship  had  not  been  paid: 
and  it  was  held,  in  an  action  of  trover  brought  by  the 
assignees  of  A  against  C  for  the  residue  of  A's  oil,  that 
the  other  part-owners  had  originally  a  lien  on  it  for  his 
share  of  the  disbursements  of  the  ship,  and  that  this 
right  was  not  devested  by  the  separation  of  A's  share 
from  the  residue,  and  placing  it  in  casks  marked  with 
his  name.(n) 

(n)  Holderness  v.  Shackels,  8  B.  &  C.  612. 


DISSOLUTION  BY    BANKRUPTCY.  304 

If  a  customer  agree  to  pay  into  a  bank  composed  of 
four  partners,  bills  of  exchange  indorsed,  and  to  take  in 
return  their  promissory  notes,  the  relation  of  debtor  and 
creditor  is,  by  the  contract,  created  with  respect  to  all 
bills  paid  into  the  bank,  and  notes  taken  in  return,  so 
long  as  the  firm  continues  the  same  as  when  the  agree- 
ment was  entered  into :  and  if  the  whole  of  the  partners 
become  bankrupt,  no  lien  can  be  claimed  upon  the  bills 
paid  in  before  the  bankruptcy ;  such  bills  will  be  held  to 
have  been  paid  in  for  the  purpose  of  being  discounted, 
and  the  property  in  them  to  have  become  vested  in  the 
bankers ;(o)  but  if  one  or  more  of  the  partners  become 
bankrupt,  and  subsequently  bills  are  paid  in,  this  trans- 
action cannot  be  referred  to  a  contract  made  in  con- 
templation of  the  security  of  the  whole  four  original 
partners.  When  the  customer  receives  promissory  notes, 
purporting  to  be  the  security  of  the  four,  but  which,  in 
truth,  are  the  security  of  fewer  than  the  whole  number, 
he  does  not  receive  the  consideration  he  contracted  for, 
and  his  bills  were  delivered  to  persons  to  whom  his  con- 
tract did  not  apply :  should  they,  therefore,  also  become 
bankrupts,  their  assignees  cannot  retain  the  bills  so  paid 
in :  the  promissory  notes,  however,  given  in  return  for 
the  bills,  must  of  course  be  restored.(^)  But  if,  by  con- 
struction of  a  written  document  to  that  effect,  an  agree- 
ment can  be  fairly  inferred,  that  notwithstanding  the 
change  of  firm,  the  contract  made  with  the  original  firm 
shall  be  continued,  the  depositor  of  bills  with  the  new 
firm  can  have  no  relief.(9r) 

We  have  seen  in  a  former  part  of  this  work,(r) 
that  an  act  *qf  bankruptcy  committed  by  one  [  *305  ] 
partner,  when  followed  by  a  commission,  dissolves 
the  partnership  by  relation  to  the  time  when  the  act  of 
bankruptcy  was  committed.  The  partner,  therefore, 
who  has  committed  the  act  of  bankruptcy,  cannot  after- 
wards communicate  to  strangers  any  rights  either  against 
the  firm  or  the  joint  property ;  because  the  commission 
and  assignment  retrospectively  deprive  him  of  all  capa- 

(o)  Ex  parte  McGae,  2  Rose,  377,  note. 

\p)  Ex  parte  McGae,  19  Ves.  609.  Ex  parte  Rowton,  17  Ves,  431. 
\q)  Ex  parte  Marsh,  2  Rose.  243.  (r)  See  ante,  p.  227. 

51 


305  THE    CONSEQUENCES    OF    A 

city  of  acting ;  they  determine  his  power  to  bind  the 
jSrm  by  relation  to  the  date  of  his  bankruptcy,  and  all  his 
rights,  from  that  time,  passing  to  his  assignees,  he  ceases 
to  have  any  further  control  over  the  partnership,  or  the 
joint  property.  And  the  statutes  concerning  bankrupts 
make  an  entire,  not  a  partial  avoidance  of  the  bank- 
rupt's acts,  as  well  in  respect  of  his  partner's  moiety  as 
his  own.  Therefore,  where  a  partner,  on  the  eve  of  his 
bankruptcy,  voluntarily  deposited  goods  with  a  third  per- 
son for  a  creditor  of  the  firm,  and  the  deposite  falsely 
purported  to  be  founded  upon  a  supposed  sale ;  the  cre- 
ditor, after  the  bankruptcy  of  the  partner,  having  received 
information  of  the  deposite,  declared  his  acceptance  of 
it ;  and  in  an  action  of  trover  by  the  assignees  under  a 
joint  commission  to  recover  the  goods,  it  was  held  that 
the  creditor  could  not  resist  their  claim,  inasmuch  as 
the  deposite  was  not  completed  until  after  the  bankruptcy 
of  the  party  depositing,  at  which  time  the  partnership 
was  at  an  end.(s)  So,  where  two  of  three  partners  af- 
fecting, but  without  authority,  to  bind  the  firim,  by  deed 
assigned  a  debt  due  to  them  from  a  correspondent 
abroad,  without  his  privity,  to  a  creditor  at  home,  and 
afterwards,  by  the  direction  of  such  correspondent,  drew 
a  bill  of  exchange  in  the  name  of  the  firm  upon  his  agent 
here,  which  was  accepted,  payable  to  their  own  order, 
for  the  amount  of  the  debt ;  and  then  the  two  partners, 
having  in  the  mean  time  committed  acts  of  bankruptcy, 
indorsed  such  bill  to  the  creditor  of  the  firm  in  part  sat- 
isfaction of  his  debt,  and  afterwards  separate  commis- 
sions were  sued  out  against  the  two  partners,  who  were 
declared  bankrupts,  and  their  effects  assigned,  the  other 
partner  being  all  the  time  abroad.  It  was  held  that  by 
such  indorsement  of  the  bill  by  the  two,  after  acts  of 
bankruptcy  committed  by  them,  though,  before  the  com- 
mission issued,  nothing  passed  to  the  creditor ;  for  the 
bankrupt  partners  had,  by  relation,  ceased,  at 
[  *306  ]  the  time  of  such  indorsement,  *to  have  any  con- 
trol over  the  joint  stock  as  partners,  and  there- 
fore could  not  bind  either  the  property  of  their  assignees, 

(s)  Hague  v,  Rolleston.  4  Burr.  3176. 


DISSOLUTION  BY  BANKRUPTCY.  306 

or  of  their  solvent  partner.(^)(l)  But  the  acts  of  a  sol- 
vent partner,  in  disposing  of  the  property  in  the  course 
of  trade,  after  a  secret  act  of  bankruptcy  committed  by 
his  copartner,  are  valid.  Therefore,  upon  a  question, 
vi'hether  assignees  under  a  joint  commission  against  two 
partners  taken  out  after  the  bankruptcy  of  both,  could 
maintain  an  action  of  trover,  against  a  person  in  posses- 
sion of  goods  under  a  sale  or  consignment,  bonajlde,  for 
a  valuable  consideration,  and  without  any  mixture  of 
fraud,  from  one  of  the  partners,  who  had  not  then  com- 
mitted any  act  of  bankruptcy  himself,  but  after  an  act  of 
bankruptcy  committed  by  the  other  partner ;  the  court 
held  the  action  could  not  be  maintained,  because  the  act 
of  the  partner,  who,  at  the  time  of  the  consignment,  had 
not  committed  any  act  of  bankruptcy,  bound  both,  and 
also  because,  supposing  the  consignment  avoided  by  the 
act  of  bankruptcy  of  the  other  partner,  then  it  was  an 
action  of  trover,  by  one  tenant  in  common  against  an- 
other, which  clearly  was  not  sustainable.(?<)(2)  And 
the  same  rule  holds,  although  the  solvent  partner  knew 
of  the  bankruptcy ;  for  even  in  such  case,  the  solvent 
partner,  having  a  lien  on  the  partnership  funds  for  his 
own  indemnity,(3)  limited  to  their  being  applied  to  the 
payment  of  partnership  debts,  may  dispose  of  partnership 
property  in  discharge  of  a  debt  due  from  the  partner- 
ship; and  though  he  afterwards  become  bankrupt,  an 

{t)  Thomason  v.  Frere,  10  East,  418. 

(u)  Fox  V.  Hanbury,  Covvp.  448 ;  and  see  Anon.  12  Mod.  446. 
Smith  V.  Stokes,  1  East,  364.  Smith  v.  Oriel,  ibid.  369;  and  the 
judgment  of  Lord  Chief  Baron  Thompson  in  Coldwell  v.  Gregory,  1 
Price,  129.  In  Brickwood  v.  Miller,  3  Meriv.  282,  Sir  William  Grant 
is  reported  to  have  said,  that  it  is  perhaps  a  matter  of  some  uncertainty 
to  what  extent  the  bankruptcy  of  one  partner  affects  the  power  of  the 
others  over  the  partnership  property. 


(1)  But  where  one  of  two  partners  in  trade  had,  after  an  act  of  bank- 
ruptcy, accepted  a  bill  of  exchange  in  the  name  of  the  firm,  without  the 
privity  of  his  co-partner, — held,  that  in  the  hands  of  an  innocent  indor- 
see it  was  an  available  security.  Lacy  v.  Wolcott  et  al.  2  Dowl.  & 
Ryl.  Rep.  458. 

(2)  See  Murray  v.  Murray,  5  Johns.  Cha.  Rep.  78. 

(3)  See  Hoxie  v.  Carr,  1  Sumn.  Rep.  173. 


306  THE    CONSEQUENCES    OF    A 

action  for  money  had  and  received  will  not  lie  against 
the  creditor  at  the  suit  of  the  joint  assignees.  Thus, 
where  one  of  two  partners,  who  were  country  bankers, 
became  bankrupt,  and  the  defendants  being  holders  of 
their  notes,  obtained  payment  of  part  of  them  from  the 
London  bankers,  at  whose  house  they  were  payable, 
out  of  the  funds  in  their  hands,  belonging  to  the  country 
bank,  and  the  solvent  partner,  knowing  of  the  bank- 
ruptcy, procured  a  debtor  to  the  firm  to  give  his  bill  in 
part  satisfaction  of  his  debt,  and  indorsed  and  delivered 
the  same  to  the  defendants,  in  payment  of  the 
[  *307  ]  ^residue  of  the  notes  in  their  hands,  and  after- 
wards became  bankrupt ;  it  was  held,  that  the 
assignees  could  not  recover  from  the  defendants  the 
monies  so  paid  to  them  by  the  Lotidon  bankers,  nor  the 
proceeds  of  the  said  bill.(i;)  But  it  has  been  ruled  that, 
after  a  secret  act  of  bankruptcy  committed  by  one  of 
two  partners,  the  other  cannot,  by  an  indorsement  in  the 
name  of  the  firm,  transfer  the  property  in  a  bill,  which 
belonged  to  the  firm  before  the  bankruptcy;  for  the 
partnership  having  ceased  to  exist,  the  solvent  partner  is 
to  be  considered  as  tenant  in  common  with  the  assignees 
of  the  bankrupt  partner,  and  consequently  the  property 
in  a  bill  can  only  be  transferred  by  their  respective  in- 
dorsements.(z^;)  And  it  is  stated  to  have  been  held,  on 
a  motion  for  a  new  trial,  that  a  disposition  by  the  sol- 
vent partners  of  a  partnership  security,  after  the  bank- 
ruptcy of  an  individual  member  of  the  firm,  is  not  avail- 
able in  favour  of  a  creditor  who,  at  the  time  of  such  dis- 
position, was  privy  to  the  bankruptcy;  because  the  right 
of  the  creditor  to  retain  the  security  under  such  circum- 
stances is  in  direct  contravention  with  the  principles  of 
the  bankrupt  laws,  which  subject  the  partnership  pro- 
perty, as  it  existed  at  the  time  of  the  bankruptcy,  to  the 
claims  of  the  creditors  of  the  single  bankrupt.(x)  It  has 
been  intimated  that  where  acts  of  bankruptcy  jare  com- 

(v)    Harvey  v.  Crickett,  5  Mau.  &  Selw.  336. 

\w)  Ramsbottom  ».  Lewis,  1  Campb.  279  ;  and  see  Ramsbotham  v. 
Cator,  1  Stark.  N.  P.  C.  228. 

(x)  Ramsbottom  v.  Duck,  1  Mont.  Dig.  of  New  Decis.  p.  18.  of 
the  notes. 


DISSOLUTION    BY    BANKRUPTCY.  307 

mitted  by  partners  at  distinct  times,  and,  between  the 
two  acts,  the  then  solvent  partner  pays  a  debt  to  a  joint 
creditor,  the  joint  assignees  may,  in  an  action  for  money 
had  and  received  to  their  use,  as  assignees  of  the  part- 
ner who,  at  the  time  of  the  payment,  had  committed  the 
act  of  bankruptcy,  recover  a  moiety.(«/)  But  it  seems 
difficult  to  conceive  upon  what  principle  a  partner  is  to 
be  considered  as  entitled  to  a  moiety  of  each  article  or 
sum  belonging  to  the  partnership,  until  the  accounts  are 
taken ;  and  the  more  especially  so  in  a  case  in  which 
the  right  of  the  creditor  stands  upon  the  legal  effect  of 
partnership,  by  which  a  partner  may  make  a  valid  trans- 
fer to  a  third  person,  without  subjecting  the  validity  of 
such  transfer  to  depend  upon  the  claims  between  the 
partners  themselves.  A  partner  whose  interest  is  con- 
fined to  the  profits,  and  does  not  extend  to  the 
*capital,  cannot,  after  the  bankruptcy  of  the  real  [  *308  ] 
owner,  transfer  the  property,  so  as  to  render  the 
transfer  effectual  against  the  assignees.(^)  And  upon 
the  principle  that  a  separate  commission  against  one 
partner  severs  the  joint-tenancy,  and  vests  the  bank- 
rupt's share  of  the  partnership  effects  in  his  assignees  as 
tenants  in  common  with  the  solvent  partner,  by  relation 
to  the  time  of  the  act  of  bankruptcy,  an  injunction  has 
been  granted  against  proceeding  under  a  foreign  attach- 
ment in  the  Lord  Mayor's  Court  against  the  property  of 
two  partners,  where  a  commission  had  been  sued  out 
against  one  of  them,  overreaching  the  attachment  by 
relation  to  the  date  of  the  bankruptcy  .(a)  But  where 
the  commercial  establishment  is  carried  on  both  in  this 
and  in  a  distant  country,  not  subject  to  the  bankrupt 
laws,  a  creditor  of  the  firm  who,  after  an  act  of  bank- 
ruptcy committed  by  a  partner  resident  here,  attaches 

{y)  Smith  v.  Goddard,  3  Bos.  &  Pul.  465.  Whitwell  v.  Thomp- 
son, 1  Esp.  N.  P.  C.  68.  72.  Bat  see  the  judgment  oi  Holroyd,  J.,  in 
Harvey  v.  Crickett,  supra,  semb.  contra. 

(z)  Meyer  v.  Sharpe,  5  Taunt.  74. 

(a)  Barker  v.  Goodair,  11  Ves.  78.  Button  v.  Morrison,  17  Ves. 
193.  S.  C.  1  Rose,  213.  In  Bristow  v.  Potts,  11  Ves.  81,  in  note, 
Lord  Rosstyn  held  a  different  opinion,  as  he  decided  that  the  assignees 
of  one  of  the  joint  debtors  had  no  equity  to  obtain  an  injunction  against 
creditors  who  had  attached  the  joint  estate. 


308 


THE   CONSEQ,UENCES   OP   A 


the  joint  property  abroad,  cannot  be  compelled  to  refund 
what  he  so  obtains  by  legal  process ;  for  the  court  can- 
not reach  the  property  abroad,  or  bind  the  partners  who 
are  out  of  its  jurisdiction ;  and  whenever  it  takes  from 
the  creditor  his  separate  remedy,  it  professes,  at  least, 
to  give  him  his  distributive  share  of  the  whole  partner- 
ship property.  Therefore,  where  a  partnership  was 
formed  in  the  West  Indies,  and  one  of  the  partners  came 
to  England,  and  established  himself  in  London  for  the 
purpose  of  conducting  the  English  branch  of  the  busi- 
ness, and  he  received  and  disposed  of  the  consignments 
from  the  West  Indies,  and  shipped  cargoes  from  England 
to  his  partners  there,  and  after  an  act  of  bankruptcy 
committed  by  him,  a  joint  creditor  attached  in  the  West 
Indies  property  belonging  to  the  firm ;  it  was  held  that 
the  assignees  under  a  separate  commission  against  that 
partner  could  not  compel  the  attaching  creditor  to  re- 
fund the  property  which  he  had  attached,  or  to  account 
for  what  he  had  received  by  virtue  of  his  attachment.(6) 
And  the  same  rule  which  governs  the  case  of  an  attach- 
ment against  joint  property  within  the  reach  of  the  court 
must  apply  with  equal  force  to  an  execution  against  joint 
estate  similarly  situated.  Therefore,  where  after 
[  *309  ]  an  execution  issued  at  the  instance  of  *joint 
creditors  against  joint  effects,  a  commission  of 
bankruptcy  was  sued  out  by  another  joint  creditor 
against  one  of  the  partners  upon  an  act  of  bankruptcy 
antecedent  to  the  execution  executed,  it  was  determined 
that  the  creditors  who  had  taken  the  effects  by  virtue  of 
the  execution  could  not  retain  them  against  the  assignees 
under  the  separate  commission.(c)  Where  one  of  two 
solicitors  in  partnership  had  become  bankrupts,  the  Court 
of  Chancery  refused  to  compel  the  assignees  to  deliver 
over  a  client's  papers  to  the  other,  without  the  client's 
consent.(c?) 

It  has  been  said  (e),  that  if  joint  property  be  in  the 

(h)  Brickwood  v.  Miller,  3  Meriv.  279. 

(c)  In  re  Wait,  1  Jac.  &  Walk.  605  ;  and  see  Dutton  v.  Morrison, 
17  Ves.  193. 

(d)  Davidson  v.  Napier,   1   Sim.  247;  and  see  Ex  parte  Horsfall, 
7  B.  &  C.  528. 

(e)  Per  Lord  Kenyan,  Smith  v.  Stokes,  1  East,  369. 


DISSOLUTION    BY    BANKRUPTCY.  309 

possession  of  a  bankrupt  partner  at  the  time  of  the 
bankruptcy,  the  assignees  may  take  the  whole  property 
and  sell  it,  but  they  must  account  to  the  other  partner 
for  his  share.  In  a  recent  case,  however,  where,  under 
a  separate  commission  against  one  partner,  the  assig- 
nees took  possession  of  the  partnership  property,  and 
were  about  to  sell  it,  the  Vice-Chancellor,  on  the  appli- 
cation of  the  solvent  partner,  granted  an  injunction,  re- 
straining the  sale,  although  the  bill  contained  no  offer  to 
pay  the  joint  creditors,  but  merely  proposed  to  account 
for  the  share  of  the  bankrupt.(/)(l)  But,  under  a 
separate  commission,  if  all  the  joint  property  is  seized 
by  the  assignees,  and  the  solvent  partner  is  dead,  the 
assignees  may,  by  a  bill  in  equity,  be  compelled  to  divide 
not  only  a  moiety,  but  the  whole  of  the  joint  effects 
amongst  the  joint  creditors  ;(^)  and  if  the  solvent  part- 
ner is  abroad,  the  whole  estate  is  administered  in  bank- 
ruptcy.(A)  Under  a  separate  commission,  the  separate 
estate  is  entitled  to  be  reimbursed  out  of  the  joint  estate 
expenses  incurred  in  recovering  property  for  the  benefit 
of  the  joint  creditors.(/) 

(/)  Allen  V.  Kilbree,  4  Madd.  464.  It  is  difficult  to  reconcile  this 
decision  with  the  observations  of  Lord  Eldon  in  Banker  v.  Goodair,  11 
Ves.  85,  and  Dutton  v.  Morrison,  17  Ves.  209.  But  the  court  will 
not,  on  the  application  of  joint  creditors,  restrain  the  assignees,  under 
a  joint  commission,  from  a  sale  of  the  stock  in  trade  of  the  bankrupt 
partners  ;  because,  in  proceeding  to  such  sale,  the  assignees  act  at  their 
own  risk,  and  upon  their  own  responsibility,  and  they  and  not  the 
court  are  to  be  judges  of  the  propriety  and  expediency  of  it.  Ex 
parte  Montgomery,  I  Glyn  &  James.  338.  See  Ex  parte  Figes,  ibid. 
122. 

{g)  Hankey  v.  Garrett,  1  Ves.  jun.  236.  S.  C.  3  Bro.  C.  C.  457. 
Everett  v.  Backhouse,  10  Ves.  98.  The  practice  is  to  obtain  this  ar- 
rangement by  order  upon  petition  after  the  choice  of  assignees.  Co.  B. 
L.  256.  1  Mont.  B.  L.  330. 

(A)  Per  Lord  Eldon,  Barker  v.  Goodair,  1 1  Ves.  86. 

{i)    Ex  parte  Rutherford,  1  Rose,  201. 


(1)  Mr.  Eden  (Bank.  Law,  252)  has  remarked,  that  there  is  proba- 
bly a  mistake  of  the  Reporter  in  Mien  v.  Kilbree,  as  the  case  cannot  be 
reconciled  with  the  doctrine  contained  in  the  observations  of  Lord  Eldon 
in  Dutton  v.  Morrison,  upon  the  authority  of  which  it  professes, to  be 
founded. 


310  THE    CONSEqUENCES    OF    A 

[*310]  *Before  the  passing  of  a  late  act  of  parlia- 
ment, it  was  an  established  rule  that  joint  credit- 
ors should  not  be  permitted  to  vote  or  interfere  in  the 
choice  of  assignees  under  a  separate  commission  .(A;)  The 
electors  of  the  assignees  were  the  separate  creditors,  and 
the  petitioning  creditor,  whether  joint  or  separate ;(/) 
but  if  there  were  not  any  separate  creditors,  the  amount 
of  whose  debts  would  entitle  them  to  vote,(m)  or  if  there 
were  not  any  joint  estate(n)  or  a  solvent  partner,(o)  the 
joint  creditors  would  have  been  entitled  to  have  proved 
their  debts  for  this  purpose.  And  even  where  joint 
creditors  were  excluded  from  voting,  the  court  would  in 
some  cases,  where  they  were  unrepresented,  have  appoint- 
ed a  person  as  an  agent  or  inspector  of  the  joint  estate 
with  ample  authority  to  take  care  of  their  interests.(/3) 
But  now  by  the  6  Geo.  4.  c.  16.  s.  62,  it  is  enacted, 
"  that  in  all  commissions  against  one  or  more  of  the 
partners  of  a  firm,  any  creditor  to  whom  the  bankrupt  or 
bankrupts  is  or  are  indebted,  jointly  with  the  other  part- 
ner or  partners  of  the  said  firm,  or  any  of  them,  shall 
be  entitled  to  prove  his  debt  under  such  commission,  for 
the  purpose  only  of  voting  in  the  choice  of  assignees  un- 
der such  commission,  and  of  assenting  to  or  dissenting 
from  the  certificate  of  such  bankrupt  or  bankrupts,  or  of 
either  of  such  purposes." 

{k)  Ex  parte  Alcock,  11  Ves.  603.  Ex  parte  Hubbard,  13  Ves. 
424.  Ex  parte  Longman,  18  Ves.  71.  Ex  parte  Taylor,  18  Ves. 
284.  Ex  parte  Parr,  18  Ves.  70.  S.  C.  1  Rose,  76.  Ex  parte 
Simpson,  1  Meriv.  38.     S.  C.  2  Rose,  337. 

{I)  Ex  parte  Hall,  9  Ves.  349.  Ex  parte  Ackerraan,  14  Ves.  604. 
Ex  parte  Dewdney,  15  Ves.  499. 

(m)  jEa:/jar/e  Jones,  18  Ves.  283.  S.  C.  reported  worn.  Ex  parte 
Laycock,  1  Rose,  32. 

(n)  ^x/jarfe  Pinkerton,  6  Ves.  814.  n.  ^x^ar/e  Machell,  2  Ves. 
&  Bea.  216.     S.  C.  1  Rose,  447. 

(o)  Ex  parte  Janson,  3  Madd.  229.     S.  C.  Buck,  227. 

(p)  Ex  parte  Bassaro,  1  Rose,  226.  Ex  parte  De  Tastet  and  Ex 
parte  Martell,  ib.  324,  5.  S.  C.  1  Ves.  &  Bea.  280.  £a;  parte  Mills, 
3  Ves.  &  Bea.  139.  S.  C.  2  Rose,  68.  Ex  parte  Simpson,  1  Meriv. 
38.  S.  C.  2  Rose,  337.  Where,  under  a  separate  commission,  a  so- 
licitor was  appointed  by  the  assignees,  and  the  joint  creditors  employed 
another  solicitor  for  the  benefit  of  the  joint  estate,  it  was  held  that  they 
were  not  entitled  to  have  the  expenses  thereby  incurred  paid  out  of  the 
joint  estate.     Ex  parte  Longman,  1  Rose,  303. 


DISSOLUTION    BY    BANKRUPTCY.  310 

Where  the  assignees  under  a  separate  commission  pos- 
sess themselves  of  the  joint  property,  it  may  frequently 
be  to  the  interest  of  joint  creditors  that  distinct  accounts 
should  be  kept  of  the  joint  and  separate  estates^  and  that 
each  should  be  applied  to  the  payment  of  the  re- 
spective classes  of  creditors  according  to  *the  [*311] 
customary  mode  of  applying  the  difterent  es- 
tates, when  separate  creditors  prove  under  a  joint  cono- 
mission.  The  correct  mode  of  effecting  this  arrangement 
is  by  bill,  but  the  practice  is  to  obtain  the  order  by  pe- 
tition after  the  choice  of  assignees.(y)  And  where, 
under  a  separate  commission  against  one  of  two  part- 
ners, the  usual  order  was  obtained  for  keeping  distinct 
accounts  of  the  joint  and  separate  estate,  the  bankrupt 
having  paid  20s.  in  the  pound  to  all  his  creditors,  ob- 
tained an  order  for  the  payment  of  the  surplus  to  him, 
and  the  same  was  accordingly  paid.  The  representative 
of  the  other  partner  was  served  with  the  petition,  and 
by  mistake  had  omitted  to  appear.  Upon  her  petition 
it  was  held,  that  she  was  entitled  to  apply  by  petition  in 
bankruptcy  for  an  account  of  such  surplus,  and  for  pay- 
ment of  her  proportion  of  it,  and  that  the  court  had  juris- 
diction to  make  the  order.(r)  Where  two  separate 
commissions  are  taken  out  against  different  members  of 
the  firm,  it  has  been  said  that  there  ought  not  to  be 
orders  for  keeping  distinct  accounts  under  each  commis- 
sion.(5) 

We  will  now  consider  the  right  which  the  joi?it  credi- 
tors have  of  proving  their  debts,  with  a  view  to  receiving 
dividends,  under  a  separate  commission  issued  against 
one  of  their  debtors.(^)  Where  the  separate  commission 
issues  at  the  instance  and  on  the  petition  of  a  joint  ere- 


[S 


r^)  1  Mont.  B.  L.  330,  and  Co.  B.  L.  253. 

\r)  Ex  parte  Lanfear,  I  Rose,  443.  It  was  urged  that  the  applica- 
tion should  have  been  by  bill. 

(s)  Per  Lord  Eldon,  Ex  parte  Bolton,  Buck,  7. 

(/)  In  Heath  v.  Hall,  4  Taunt.  328.  Mansfield,  C.  J.,  says,  "  The 
practice  of  the  Court  of  Chancery  has  varied  much  within  my  memory ; 
it  used  to  be  that  a  joint  creditor  might,  under  a  separate  commission, 
prove  and  receive  a  dividend ;  but  now  he  cannot  proceed  to  receive  a 
dividend  unless  there  is  a  surplus;  he  can  only  prove  his  debt." 

52 


311  THE  CONSEQUENCES  OP  A 

ditor,(z^)  his  right  is  in  no  respect  distinguishable  from 
that  of  a  separate  creditor.  He  is  entitled  to  prove 
his  debt  under  the  commission  as  if  it  were  a  separate 
debt,  and  to  receive  a  dividend  pari  passu  with  the  sepa- 
rate creditors.  It  is  not  even  an  objection  to  his 
[*312]  proof  that  as  to  part  of  the  debt  *proved  he  is 
a  trustee  for  another  joint  creditor,  who,  accord- 
ing to  the  general  rule,  could  not  himself  have  proved, 
so  as  to  have  been  entitled  to  receive  a  dividend,  because 
with  the  trust  the  commissioners  or  creditors  have  no 
right  to  interfere. (v)  But  in  determining  the  rights  of 
the  other  joint  creditors  under  a  separate  commission, 
great  uncertainty  .and  confusion  has  prevailed.  In  the 
time  of  Lord  Hardwicke,  the  rule  adopted  was  to  permit 
joint  creditors  to  prove  under  a  separate  commission 
against  one  partner,  or  under  separate  commissions 
against  all  the  partners,  for  the  purpose  of  assenting  to 
or  dissenting  from  the  certificate ;  and  the  joint  credi- 
tors were  considered  to  have  an  equitable  right  to  any 
surplus  of  the  separate  estates,  after  payment  of  the 
separate  creditors ;  but  the  joint  property  was  distributed 
under  a  joint  commission  taken  out  for  that  purpose,  or 
a  bill  must  have  been  filed  for  an  account  of  the  joint 
estate.(i^)  This  rule  was  broken  in  upon  by  Lord  Thur- 
low,  who  expressed  his  decided  opinion  that  the  contrary 
course  was  the  best,  as  being  the  most  legal,  and  who, 

[i()  Ex  parte  Hall,  9  Ves.  349.  Ex  parte  Ackerman,  14  Ves.  634. 
Ex  parte  Dewdney,  15  Ves.  499.  The  petitioning  creditor  under  a 
joint  commission  cannot  sustain  a  claim  of  proof  against  the  separate 
estates  of  the  bankrupts,  in  competition  with  the  separate  creditors. 
And  therefore,  where  a  joint  creditor  sued  out  a  commission  against  A 
"  as  surviving  partner  of  B,"  it  was  held,  that  as  the  assignees  under  it 
were  entitled  to  possess  the  joint  estate,  and  to  administer  it  as  joint 
estate,  and  as  a  separate  creditor  could  not  have  maintained  such  a  com- 
mission, the  commission  was  joint,  and  consequently  that  the  creditor 
could  claim  only  against  the  joint  estate.  Ex  parte  Earned,  1  Glyn  & 
James.  309. 

{v)  Ex  parte  De  Tastet,  17  Ves.  247.  S.  C.  1  Rose,  10.  The  pe- 
titioning creditor  under  a  commissisn  against  two  or  more  partners  of 
a  firm  is  not  entitled  to  receive  a  dividend  out  of  the  separate  estates 
rateably  with  the  separate  creditors.     6  Geo.  4.  c.  16.  s.  62. 

{w)  Ex  parte  Baudier,  1  Atk.  98.  Ex  parte  Voguel,  1  Atk.  132. 
Ex  parte  Oldknow,  Co.  B.  L.  245.  Ex  parte  Cobham,  ib.  246.  See 
also  Button  v.  Morrison,  17  Ves.  207.     Ex  parte  Farlow,  1  Rose,  422. 


DISSOLUTION    BY    BANKRUPTCY.  312 

in  several  instances,(^)  allowed  the  joint  creditors  to 
prove  and  take  dividends  under  a  separate  commission ; 
his  lordship  holding  that  a  commission  of  bankruptcy 
was  an  execution  tor  all  the  creditors,  and  as  the  as- 
signees  under  a  separate   commission   might   possess 
themselves,  not  only  of  the  separate  estate,  but  of  the 
bankrupt's  proportion  of  the  joint  estate,  and  as  a  joint 
creditor  having  brought  an  action  and  recovered  judg- 
ment against  all  his  debtors  might  have  several  execu- 
tions against  each,  therefore  the  bankruptcy  preventing 
his  action  with  effect,  should  be  considered  a  judgment  for 
him  as  well  as  the  others,  and  consequently  that  no  dis- 
tinction ought  to  be  made  between  joint  or  separate  debts, 
but  that  they  ought  all  to  be  paid  rateably  out  of  the  bank- 
rupt's property,  which  was  composed  of  his  separate  es- 
tate, and  his  moiety  or  other  proportion  of  the 
joint  estate.(«/)     *Lord  Rosslyn  acted  for  some  [*313] 
time  upon  the  practice  established  by  Lord  Thiir- 
low,  but  afterwards  with  some  alteration ;  and  upon  great 
consideration,  he  restored  the  principle  of  the  rule  which 
had  been  adopted  by  Lord  Hardwicke.  Li  the  case  of  Ex 
parte  Elton^{z)  Lord  Rosslyn  says,  "  The  plain  rule  of  dis- 
tribution is,  that  each  estate  shall  bear  its  own  debts. 
The  equity  is  so  plain  that  it  is  of  course  upon  a  bill 
filed.     The  object  of  a  commission  is  to  distribute  the 
effects  with  the  least  expense.     Every  order  I  make  to 
prove  a  joint  debt  upon  the  separate  estate,  must  produce 
a  bill  in  equity.     It  is  not  fundamentally  a  just  distri- 
bution, nor  a  convenient  distibution ;  because  it  tends  to 
more  litigation  and  more  expense.     Every  creditor  of 
the  partnership  would  come  upon  the  separate  estate. 
The  consequence  would  be,  the  assignees  of  the  separate 
estate  must  file  a  bill  to  restrain  the  dividend  upon  all 
these  proofs,  and  make  the  partners  parties.  But  there  is 
another  circumstance ;  it  is  a  contrivance  to  throw  this 
upon  the  separate  estate ;  for  what  hinders  them  from 

(x)  Ex  p^rte  Haydon,  Co.  B.  L.  246.  S.  C.  Bro.  C.  C.  453.  Ex 
parte  Copland,  Co.  B.  L.  248.  S.  C.  1  Cox,  420.  Ex  parte  Hodg- 
son, 2  Bro.  C.  C.  5.  Ex  parte  Page,  ib.  119.  Ex  parte  Flintura,  ib. 
120. 

(y)  See  Button  v.  Morrison,  17  Ves.  207.  (z)  3  Ves.  242. 


313  THE    CONSEQUENCES    OP    A 

recovering  at  law  this  debt  against  the  partnership,  for 
it  is  money  paid  to  one  of  the  partners  ?  They  have 
nothing  to  do  but  to  bring  an  action  against  the  partners. 
The  affairs  of  the  partnership  may  be  very  much  in- 
volved ;  but  if  they  are  arrested,  they  would  pay  it.  It 
is  not  stated  as  a  case  where  there  are  no  joint  effects. 
Here  it  is  only  that  there  are  two  funds.  Their  proper 
fund  is  the  joint  estate,  and  they  must  get  as  much  as 
they  can  from  that  first.  I  have  no  difficulty  in  ordering 
them  to  be  admitted  to  prove,  but  not  to  receive  a  divi- 
dend."(1)  This  rule  was  afterwards  acted  upon  by  Lord 
Rosslyn^(ci)  and  was  adopted  and  followed  by  Lord  Eldon 
in  many  subsequent  cases,  not  because  he  was  convinced 
of  its  propriety,  or  of  its  being  better  calculated  to  the 
due  administration  of  justice  than  the  doctrine  intro- 
duced by  Lord  Thiirlow,  but  he  adhered  to  it,  because  it 
was  the  practice,  and  to  avoid  the  mischief  arising  from 
shaking  settled  rules. (6)  According  to  the  rule,  there- 
fore, which  these  decisions  have  established,  if  there  is  a 
joint  fund,  or  a  solvent  partner,  a  joint  creditor  is  not 
entitled  to  prove  his  debt  under  a  separate  commission 
for  the  purpose  of  receiving  a  dividend,  without 
[*314]  the  Lord  Chancellor's  order.(c)  *And  notwith- 
standing the  joint  property  is  of  the  most  trivial 
amount,  yet  if  there  is  such  a  fund,  of  any,  even  the 
smallest  description,  and  it  is  capable  of  being  realised, 
the  rule  is  inflexible,  and  there  will  be  no  departure  from 
it.(c?)  Lord  Eldon,  indeed  admitted  this  qualification  of 
the  rule,  that  "  if  the  property  alleged  to  exist  be  of  such 
a  nature,  and  in  such  a  situation,  that  any  attempt  to 
bring  it  within  the  reach  of  the  joint  creditors  must  be 
deemed  a  desperate,  or,  in  point  of  expense,  an  unwar- 

(a)  i:x  parte  Abell,  4  A^'es.  837. 

(6)  Ex  parte  Clay,  6  Ves.  813,  and  the  case  cited  ib.  in  note.     Ex 
parte  Kensington,  14  Ves.  447.     Ex  parte  Taitt,  16  Ves.  193. 

(c)  Mont.  B.  L.  230. 

(d)  Ex  parte  Peake,  2  Rose,  54.     See  also  In  re  Lee,  ib.  in  note. 


(1)  See  Tuckers  v.  Oxley,  5  Cranch.  34.    Murray  v.  Murray,  5 
Johns.  Cha.  Rep.  74. 


DISSOLUTION    BY    BANKRUPTCY.  314 

rantable  attempt,  that  would  authorise  a  departure  from 
the  rule ;  as  in  truth  there  would  then  be  no  joint  pro- 
perty."(e)  And  joint  estate  has  been  said  to  mean  such 
estate  only  as  comes  under  the  administration  of  the 
assignees  to  distribute,  and  not  to  extend  to  joint  estate 
pledged  for  more  than  its  value. (/")  Therefore,  a  cre- 
ditor having  joint  property  of  the  bankrupts  in  pledge, 
and  selling  the  same  after  the  bankruptcy  for  a  sum  less 
than  iiis  debt,  may,  notwithstanding,  prove  for  the  dif- 
ference against  the  separate  estates  of  the  bankrupts,  if 
there  is  no  other  joint  property.(^)  But,  until  a  sale 
takes  place,  the  creditor  will  not  be  permitted  to  prove, 
because  the  amount  of  the  debt  remaining  due,  cannot 
be  ascertained. (A)  And  if  several  firms  are  engaged  in  a 
joint  adventure,  and  there  is  no  joint  property,  the  cre- 
ditors of  the  adventure,  in  the  event  of  bankruptcy,  must 
prove  against  the  estates  of  the  individuals,  and  not  of  the 
firm.(z)  So,  although  there  is  not  any  joint  fund,  yet  if 
there  is  a  solvent  partner,  a  joint  creditor  will  not  be  per- 
mitted to  prove  and  receive  a  dividend  under  a  separate 
commission. (Q  And  by  the  term  solvent  partner  is 
understood  a  partner  against  whom  no  commission  of 
bankruptcy  has  issued ;(/)  for,  it  was  recently  observ- 
ed,(m)  a  person  may  be  insolvent,  and  yet 
be  able  to  pay  a  considerable  *part  of  his  [*315] 
debts;  and  as  a  creditor,  by  using  due  dili- 
gence against  such  a  debtor,  might  obtain  payment,  it 
follows  that  insolvency  must,  for  this  purpose,  be  distin- 

(e)  Ex  parte  Peake,  2  Rose,  54.     See  also  In  re  Lee  ib.  in  note. 

(f)  Ex  parte  Hill,  2  N.  R.  191.  n. 

(g)  Ex  parte  Geller,  2  Madd.  262. 

{h)  Ex  parte  Hoplcy,  1  Jac.  &  Walk,  423.  S.  C.  2  Jac.  &  Walk. 
220  ;  and  1  Glyn  &,  James.  63.  Ex  parte  Smith,  2  Rose,  64.  Ex 
parte  Greenwood,  Buck,  323.  Ex  parte  Barclay,  1  Glyn  &  James. 
272.  A  pending  execution,  in  respect  of  a  joint  debt,  will  not  effect  a 
creditor's  rijrht  to  prove  a  distinct  separate  debt,  under  a  separate  com- 
mission.    Ex  parte  Stanborough,  5  Madd.  89. 

(i)  Ex  parte  Wylie,  2  Rose,  393  ;  but  see  Ex  parte  Nolle,  2  Gl.  & 
Jam.  295,  in  which  the  authority  of  Ex  parte  Wylie  is  denied. 

(A)  Ex  parte  Kensington,  14  Ves.  447.  Ex  parte  Kendall,  ib.  449. 
Ex  parte  Sadler,  15  Ves.  52. 

(/)  Everett  v.  Backhouse,  10  Ves.  100. 

(m)  Ex  parte  Janson,  3  Madd.  229.     S.  C.  Buck,  227. 


315  THE    CONSEqUENCES    OP    A 

guishable  from  bankruptcy;  for  in  the  latter  case  the 
whole  of  the  property  is  absorbed  by  the  commission, 
and  there  cannot  possibly  be  any  prospect  of  a  success- 
ful result  attending  the  legal  vigilance  of  the  creditor. 
The  principle  is,  that  whilst  there  is  any  fund,  however 
small,  to  which  to  resort,  or  whilst  a  chance  exists  of 
obtaining  payment  from  any  of  the  debtors,  who  have 
not  been  declared  bankrupts,  the  joint  creditors  cannot 
prove  against  the  separate  estate  of  one  of  the  partners, 
in  competition  with  his  separate  creditors.  Where,  in- 
deed, no  joint  property  existed,  but  there  was  a  solvent 
partner  abroad,  who  was  not  likely  to  return,  Lord  Eldon 
ordered  proof  of  a  joint  debt  under  a  separate  commis- 
sion, but  he  directed  the  order  to  recite  that  it  was  ad- 
mitted there  was  not  any  joint  fund.(7i)  And  where  the 
partner  was  insolvent  at  the  time  the  proof  was  ten- 
dered, his  lordship  held  that  it  could  not  be  rejected, 
because  the  partner  continued  solvent  for  some  time 
after  the  commission  issued.(o)  Joint  creditors  will  also 
be  permitted  to  prove  under  a  separate  commission,  even 
where  there  is  a  subsisting  joint  estate  or  a  solvent  part- 
ner if  they  will  discharge  the  demands  which  the  separate 
creditors  have  upon  the  separate  estate.(jL>)  But  it 
should  seem  that  upon  an  application  for  this  purpose,  a 
mere  offer  to  pay  the  separate  debts  would  not  be  suffi- 
cient without  some  proof  before  the  court  as  to  their 
amount.(^)  We  have  hitherto  considered  the  subject 
principally  with  a  view  to  the  proof  for  taking  a  divi- 
dend. But  long  before  the  time  of  Lord  Rosslyn,  it  had 
been  the  custom  to  allow  creditors  having  no  right  to 
take  dividends,  to  prove  either  against  the  joint  or  the 
separate  estate  respectively,  for  the  purpose  of  voting  in 
the  choice  of  assignees,  or  of  assenting  to  or  dissenting 
from  the  certificate. (r)  And  in  the  same  manner,  where 
partnership  property  was  supposed  to  have  been  taken 
under  the  separate   commission,  joint  creditors   were 

(n)  Ex  parte  Pinkerton,  6  Ves.  814.  n.  14  Ves.  449.     See  alsOjEaJ 
parte  Machell,  2  Ves.  &  Bea.  216.     S.  C.  1  Rose,  447. 
(o)  Ex  parte  Jones,  1  Mont.  B.  L.  238. 

(p)  Ex  parte  Chandler,  9  Ves.  35.    Ex  parte  Hubbard,  13  Ves.  424. 
(q)  Ex  parte  Taitt,  16  Ves.  195.  (r)  Eden's  B.  L.  164. 


DISSOLUTION  BY  BANKRUPTCY.  315 

allowed  to  come  in ;  and  in  two  modern  instances  they 
were  permitted  to  vote  in  the  choice  of  as- 
signees.(5)  The  new  act,(/)  however,  has  *given  [  *316] 
a  more  extensive  right  to  joint  creditors  under 
separate  commissions,  as  it  entitles  them  to  prove  for 
the  purpose  of  voting  in  the  choice  of  assignees,  and  of 
assenting  to  or  dissenting  from  the  certificate ;  but  they 
are  not  to  receive  dividends  to  the  prejudice  of  the  sepa- 
rate creditors,  except  a  joint  creditor  being  a  petitioning 
creditor  in  a  commission  against  one  member  of  a  firm. 
It  has  been  held  that  a  creditor  who  proceeds  to  out- 
lawry against  two  of  three  partners  cannot  prove  his 
debt  against  the  separate  estate  of  the  third  partner, 
although  the  latter  gave  a   separate  cognovit  in  the 
action  in  which  his  copartners  were  outlawed.(?^) 

If  joint  creditors,  under  an  order  to  prove  against 
separate  estates,  on  the  ground  of  there  being  no  joint 
property,  prove  against  one  or  more  of  them  exclusively 
of  the  rest,  and  any  joint  property  is  afterwards  realized, 
the  estates  so  burdened  by  the  proof  are  entitled  to  be 
reimbursed  out  of  the  joint  property  to  the  extent  of  the 
proofs  made  against  them,  before  the  joint  property  is 
divisible  between  the  separate  estates.(i;)  And  where 
both  the  joint  and  separate  estates  were  liable  to  a  debt 
to  the  crown,  and  by  process  more  had  been  levied  upon 
the  joint  estate  than  its  proportion,  contribution  was  de- 
creed between  the  two  estates,  and  it  was  referred  to  the 
Master  to  settle  the  proportion.(?^') 

We  will  now  proceed  to  examine  in  what  cases  the 
joint  creditors  are  permitted  to  prove  a  debt  due  from  a 
single  partner  to  the  partnership  against  the  separate  estate 
of  that  partner,  and  afterwards  we  will  advert  to  the 
right  which  an  individual  partner  possesses  to  satisfaction 
of  a  debt  due  to  the  partnership  out  of  the  surplus  of  the 
joint  estate,  in  preference  to  the  separate  creditors  of  the 
indebted  partner.    Where  one  partner  has  taken  more 

(s)  Ex  parte  Jones,  18  Ves.  283.     Ex  parte  Taylor,  ib.  284. 

(t)  6  Geo.  4.  c.  16.  s,  62. 

(m)  Ex  parte  Dunlop,  Buck,  253. 

(v)   Ex  parte  Willock,  2  Rose,  392. 

(w)  Rogers  v.  Mackenzie,  4  Ves.  752. 


316  THE    CONSEQUENCES   OF   A 

than  his  share  out  of  the  joint  fund,  the  joint  creditors, 
as  the  rule  is  now  estabhshed,  cannot  be  admitted  to 
prove  against  the  separate  estate  of  that  partner,  until 
his  separate  creditors  are  satisfied;  unless  it  can  be 
shown  that,  in  drawing  out  the  money,  the  partner 
acted  fraudulently,  with  a  view  to  benefit  his  separate, 
at  the  expense  of  the  joint  creditors.  The  law,  sanc- 
tioned by  the  authorities  of  Lord  Talbot, (x) 
[*317]  and  Lord  Hurdivickc,{y)  formerly  *was,  that 
if  the  debt  raised  by  the  partners  against  an 
individual  partner  arose  out  of  contract,  as  upon  a 
loan  by  the  partnership  to  him,  the  joint  creditors 
might  be  admitted  to  prove  against  the  separate  es- 
tate in  competition  with  the  separate  creditors.  But 
the  opinions  entertained  by  those  learned  judges  have 
been  receded  from  in  more  modern  times;  and  the 
settled  doctrine  now  is,  that  if  the  claim  arise  out 
of  contract,  the  estates  are  to  be  administered  jointly 
and  separately,  as  they  are  actually  constituted  at  the 
time  of  the  bankruptcy,  the  joint  creditors  not  being  per- 
mitted to  recall  into  the  joint  fund  what  one  partner  has 
by  contract,  express  or  implied,  subtracted  from  the  joint 
and  applied  in  augmentation  of  his  separate  estate.(^) 
This  rule  was  introduced  by  Lord  Thurlow,  who,  having 
much  considered  the  question,  finally  determined  that  the 
assignees  on  behalf  of  the  joint,  could  not  prove  against 
the  separate  estate,  unless  the  partner  had  taken  the 
joint  property  with  a  fraudulent  intent,  to  augment,  his 
separate  estate.  Thus,  where  Fcndall  was  a  dormant 
partner  with  Lodge,  and  Lodge  took  money  from  the 
partnership,  to  a  considerable  amount,  without  the  know- 
ledge of  Pcndcdl,  who  did  not  intermeddle  in  the  part- 
nership business.  Lord  Thurlow,  after  taking  time  to 
consider,  thought  he  could  not  permit  the  assignees, 
under  a  joint  commission,  to  prove  against  the  separate 
estate  of  Lodge,  without  deciding  upon  a  principle  that 
must  apply  to  all  cases,  and  constantly  occasion  the  tak- 

{x)  Ex  parte  Blake,  Co.  B.  L.  503.     S.  C.  nom.    Ex  parte  Drake, 
cited  1  Atk.  225. 

(V)  Ex  parte  Hunter,  1  Atk.  223.     S.  C.  Co,  B.  L.  500. 
{z)  Ex  parte  Yonge,  3  Ves.  &  Bea.  34.     S.  C.  2  Rose,  44. 


DISSOLUTION    BY    BANKRUPTCY.  317 

ing  an  account  between  the  partners  and  the  partnership 
in  every  joint  bankruptcy.  He  said,  that  if  the  affidavits 
had  gone  the  length  of  connecting  the  bankruptcy  with 
the  institution  of  the  partnership  trade,  and  that  Lodge., 
with  a  view  of  swindling  Fendall  out  of  his  property,  had 
got  him  into  the  trade,  and  then  taken  the  effects  of  the 
partnership  into  his  own  hands,  with  a  view  to  his  separate 
creditors,  it  might  have  been  different ;  and  the  petition, 
on  the  part  of  the  joint  creditors,  to  prove  against  the 
separate  estate,  was  dismissed.(a)  The  principle  estab- 
lished by  Lord  Timrlow's  decisions  has  been  acknow- 
ledged and  followed  by  Lord  Eldon  ;(6)  and  it  is  now  an 
indisputable  rule  in  bankruptcy,  that  where  the  debt 
from  one  partner  to  the  partnership  was  incurred 
with  the  privity  of  his  copartners,  *proof  by  the  [  *318  ] 
joint  against  the  separate  estate  will  not  be  ad- 
mitted! Thus,  if  upon  the  formation  of  a  partnership  of 
two  persons,  it  is  agreed  that  the  money  shall  be  paid 
into  the  bankers  in  their  joint  names,  and  such  payment 
is  not  made  in  their  joint  names,  but  one  of  the  partners 
permits  the  money  to  be  paid  in  in  the  name  of  the  other 
partner,  by  whom,  and  in  whose  name,  all  the  drafts  are 
drawn,  the  court  will  infer  that  ruch  partner  was  per- 
mitted to  apply  the  partnership  funds  to  his  own  use.(c) 
And  where  one  partner,  intrusted  with  the  entire  man- 
agement of  the  partnership  concern,  withdraws  money 
for  his  separate  use,  which  he  openly  and  without  dis- 
guise or  concealment  enters  in  the  partnership  books, 
this  is  not  such  a  fraud  as  will  entitle  the  joint  creditors 
to  prove  against  the  separte  estate.(c?)  Where,  how- 
ever, the  debt  does  not  arise  out  of  contract,  but  out  of 
a  fraudulent  breach  of  the  obligations  existing  between 
the  partners,  a  case  of  exception  is  formed  to  the  general 
rule,  and  under  such  circumstances  it  has  been  decided 
and  understood  from  Fordyce's  case(c)  down  to  the  pre- 

(tt)  Ex  parte  Lodge,  Co.  B.  L.  505.  S.  C.  1  Ves.  jun.  166.  See 
also  9.  Ves.  &l  Bea.  213.  Ex  parte  Batson,  Co.  B.  L.  503.  Ex 
parte  Grill,  ibid. 

ib)  Ex  parte  Harris,  1  Rose,  129.  437.    S.  C.  2  Ves.  &i  Bea.  210. 

\c)  Id  ibid. 

(rf)  Ex  parte  Smith,  1  Glyn  &;  James.  74.     S.  C.  6  Madd.  2. 

{e)  Ex  parte  Cuit,  Co.  B.  L.  500. 

53 


318  THE    CONSEQUENCES    OF    A 

sent  time,  that  the  funds  subtracted  shall  be  considered 
as  detached  from  the  general  partnership  balance,  and 
as  forming  a  distinct  debt  due  from  one  estate  to  the 
other.     In  such  cases  the  court  has  said,  it  is  against 
conscience  that  the  separate  creditors  should  resist  the 
restoration  of  that  which  the  separate  debtor,  from  whom 
the  joint  creditors  seek  payment,  has  so  unrighteously, 
against  the  consent  of  his  partners,  and  in  fraud  of  their 
contract,  taken  out  of  the  joint  fund.     And  to  constitute 
a  fraudulent  subtraction  within  the  meaning  of  this  ex- 
ception, any  taking  in  violation  of  express  or  implied 
contract  is  presumptively  sufficient.     This  was  clearly 
and  emphatically  advanced  by  Lord  Eldon  on  a  recent 
occasion,(/)  when  he  thus  expressed  himself:  "  I  now 
lay  down,  that  if,  in  either  the  expressed  or  imphed  terms 
of  an  agreement  for  a  partnership,  there  is  a  prohibition 
of  the  act,  and  it  is  done  without  the  knowledge,  con- 
sent, privity,   or  subsequent  approbation  of  the  other 
partner,  before  the  bankruptcy;  and  to  the  intent  to 
apply  partnership  funds  to  private    purposes,   that   is, 
prima  facie  a  fraud  upon  the  partnership.     To  illustrate 
this,  I  will  put  the  simple  case  of  a  partnership  between 
two;   and,    by  the  articles,   all   the   money  is 
[  *319  ]  *to  be  paid  in  to  their  joint  names  at  a  particu- 
lar bank,  and  they  are  prohibited  from  drawing 
out  more  than  50/.  a  month  each  for  individual  pur- 
poses; that  during  the  month  of  January  they  mutually 
observed  those  articles  by  paying  in,  and  on  the  first  of 
February,  one,  instead  of  50/.  draws  out  550/.,  and  upon 
the  next  day  a  bankruptcy  happens ;  if  it  is  made  out 
that  this  overdrawing   was  for  private   purposes,  and 
without  the  knowledge,  consent,  privity,  or  subsequent 
approbation  of  the  other,  as  it  was  for  private  purposes, 
and  therefore  must  be  for  the  increase  of  the  individual's 
estate;  and  as  it  was  against  the  covenanted  rights,  or 
rather  the  prohibitions,  affecting  both,  and  without  the 
knowledge,  consent,  privity,  or  subsequent  approbation 
of  the  copartner,  it  is  as  much  a  fraud  within  Lord 
Thurlow^s  rule,  as  if,  according  to  the  expression  I  am 

(/)  Ex  parte  Harris,  2  Ves.  &  Bea.  214. 


DISSOLUTION   BT   BANKRUPTCY.  319 

informed  I  formerly  used,  he  had  stolen  the  property." 
In  the  foregoing  case,  his  lordship  directed  the  commis- 
sioners to  inquire  whether  the  money  was  applied  by  the 
single  partner  to  his  separate  use,  without  the  know- 
ledge, privity,  or  approbation  of  his  copartner,  and  if  so, 
he  declared  that  the  joint  creditors  were  entitled  to  prove 
against  the  separate  estate.(^)  And  in  a  late  case, 
where  by  the  course  of  bankers,  business  stock  was  in- 
vested for  capital  in  the  name  of  one  of  the  partners, 
who  appropriated  part  thereof  without  the  privity  of  the 
others,  and  afterwards  retained  it,  but  was  by  the  firm 
charged  with  the  dividends  on  it,  and  the  transaction 
treated  as  a  sale  and  appropriation  to  his  separate  use, 
it  was  held,  that  it  was  not  an  acquiescence,  amounting 
to  subsequent  approbation,  and  that  the  joint  estate  was 
entitled  to  prove  for  such  sum  against  the  separate 
estate  of  that  partner.(A)  In  another  case  of  a  fraudu- 
lent subtraction  of  partnership  property  by  one  partner 
who  became  bankrupt,  the  two  others  remaining  solvent, 
and  having  paid  the  debts  of  the  partnership,  a  question 
arose  whether  the  solvency  of  the  two  prevented  them 
from  having  that  benefit  against  the  separate  estate 
w^hich  the  creditors  of  the  partnership  would  have  had  if 
all  three  had  become  bankrupt.  It  was  contended  that 
they  could  not,  as  they  would  be  entering  into  competi- 
tion with  their  own  creditors ;  that  the  two  could  not  be 
represented  as  creditors  of  the  bankrupt  partner  in  this 
transaction,  as  in  fact  the  three  were  so.  But  it  was 
said  by  the  court,  that  equity  would  modify  the  transac- 
tion, and  put  it  in  such  circumstances  that  the 
*equitable  remedy  of  the  two  solvent  partners  [  *320  ] 
should  not  be  defeated  by  the  fact  that  they 
might  not  have  a  legal  remedy.  That  in  bankruptcy 
there  is  both  a  legal  and  an  equitable  jurisdiction,  and 
previously  to  the  bankruptcy  the  solvent  partners  ni'ght 
have  filed  a  bill  to  compel  the  other  to  replace  the  money 
so  fraudulently  obtained :  that  right  could  not  be  taken 
from  them  by  the  bankruptcy,  and  the  fact  that  the  sepa- 


{g)  S.  C.  1  Rose,  129. 

[h)  Ex  parte  Watkins,  1  Mont.  &  M.  57. 


320  THE  CONSEqUENCES  OF  A 

rate  creditors  have  a  right  to  the  separate  estate;  as 
though  in  law  the  two  solvent  partners  could  not  strictly 
be  the  creditors  of  the  one,  and  though  if  all  were  sol- 
vent the  two  could  not  maintain  an  action  against  one 
of  them,  yet  in  equity  the  money  so  abstracted  by  that 
one  is  the  debt  of  the  two,  to  be  applied  by  them  as 
trustees  of  the  three :  and  the  bankruptcy  could  not  alter 
that.(i)  So,  in  the  instance  which  has  been  before  ad- 
verted to,  of  the  acting  partner  withdrawing  part  of  the 
joint  funds  for  his  separate  use,  if,  instead  of  avowing  the 
fact  at  the  time,  he,  by  the  entries  in  the  books,  disguis- 
ed tl\e  transaction,  or  wholly  omitted  and  concealed  it, 
the  joint  creditors  would  have  a  claim  upon  the  separate 
estate  in  competition  with  the  separate  creditors,  to  the 
extent  of  the  sum  withdrawn.(^)  In  general,  however, 
cases  of  this  kind  must  be  decided  upon  their  particular 
circumstances,  and  the  conclusion  of  law,  as  to  fraud, 
must  depend  upon  the  nature  of  those  circumstances. 
But  it  may  be  observed,  that  the  conduct  of  the  parties 
in  a  partnership  may  supercede  the  stipulations  of  the 
articles,  and  raise  a  presumption  of  assent  to  a  different 
agreement,  and  an  approbation  of  a  different  mode  of 
dealing  with  the  partnership  funds,  from  their  knowledge 
of,  and  acquiescence  in  it.  Therefore,  where  the  arti- 
cles of  partnership  provided  that  the  partners  should  not 
draw  out  for  their  own  individual  use  more  than  a  cer- 
tain sum  every  month,  and  that  the  money  belonging  to 
the  concern  should  be  lodged  in  the  hands  of  a  banker 
in  their  joint  names,  but  after  the  formation  of  the  part- 
nership, the  uniform  practice  had  been  for  one  partner 
to  lodge  the  money  of  the  concern  with  his  own  private 
money  in  the  hands  of  a  banker  in  his  own  name,  and 
he  had  also  been  in  the  habit  of  paying  and  drawing  out 
money  as  he  saw  occasion,  and  it  appeared  that  the 
other  partner  was  aware  of  this  departure  from  the  arti- 
cles, for  he  not  only  kept  the  books,  but  the  amount  of 

the  sums  received  and  laid  out  by  his  copartner 
[  *321  ]  were  regularly  communicated   to   him,   *Lord 

Eldon,  on  a  petition  being  presented  by  the  as- 

(i)    Ex  parte  Yonce,  3  Ves.  &  Bea.  31.-  S.  C.  2  Rose,  40. 
{h)  Ex  parte  Smith,  1  Glyn  &  James.  74.  S.  C.  6  Madd.  2. 


DISSOLUTION    BY    BANKRUPTCY.  321 

signees  under  a  joint  commission  for  liberty  to  prove 
against  the  separate  estate  of  the  one  partner  a  sum  of 
money,  as  having  been  applied  by  him  to  his  own  pri- 
vate use  in  violation  of  the  partnership  articles,  held  that 
such  proof  could  not  be  admitted,  because  the  one  part- 
ner having  knowingly  acquiesced  in  what  necessarily 
gave  to  the  other  the  whole  controul  over  the  joint  funds, 
he  must  abide  by  the  consequences  of  his  own  conduct, 
notwithstanding  the  perversion  was  in  defiance  of  the 
original  partnership  contract.(/) 

When  the  claims  upon  the  partners  and  the  joint  funds 
are  fully  satisfied,  (for  as  between  a  joint  debtor  and  a 
joint  creditor  there  cannot  in  any  case  be  a  competi- 
tion,) (m)  one  partner  may  successfully  assert  a  right  to 
satisfaction  of  a  debt  due  to  the  partnership  from  his  co- 
partner out  of  the  surplus  of  the  joint  estate,  in  prefer- 
ence to  the  separate  creditors  of  the  latter ;  and  if  that 
fund  should  prove  insufficient  to  discharge  the  demand, 
he  may  likewise  insist  on  coming  upon  the  separate  es- 
tate pari  passu  with  the  separate  creditors.(7i)  Under 
what  circumstances  such  a  right  of  retainer  and  such 
proof  is  allowed  we  will  now  inquire.  The  principle 
upon  which  the  right  of  the  solvent  partner  to  the  surplus 
of  the  joint  estate,  in  exclusion  of  the  separate  creditors 
of  his  bankrupt  partner,  proceeds,  we  have  already  had 
frequent  occasion  to  notice,  and  it  is  this, — that  after 
payment  of  the  partnership  debts,  the  first  object  of  a 
court  of  equity  is,  to  place  the  partners  themselves  upon 
a  footing  of  equality,  by  reimbursing  one  partner  what- 
ever he  may  have  advanced  beyond  his  proportion,  or  by 
making  him  refund  the  excess  of  his  share  which  he  may 
have  subtracted.(o)  The  rights  of  the  partners  inter  se 
are  secondary  and  subservient  only  to  those  of  the  joint 
creditors,  and  although  the  assignees  of  a  bankrupt  part- 

(/)    Ex  parte  Harris,  1  Rose.  437.     S.  C.  2  Ves.  &  Bea.  210. 

(m)  Ex  parte  Kendal,  17  Ves.  521.     Ex  parte  Adams,  1  Rose,  30.5. 

in)  Ex  parte  Terrell,  Buck,  345.  Fereday  v.  Wightwick,  1  Tom- 
lyn's  Rep.  250.     Ex  parte  Reeve,  9  Ves.  589. 

(o)  Taylor  v.  Fields,  4  Ves.  396.  S.  C.  15  Ves.  559.  n.  Croft  v. 
Pyke,  3  P.  Wms.  183.  West  v.  Skip,  1  Ves.  jun.  239.  S.  C.  2 
Swanst.  586.  Button  v.  Morrison,  17  Ves.  209.  Ex  parte  King,  ib. 
115.     In  re  Wait,  1  Jac.  &  Walk.  609. 


321  THE   CONSEQUENCES   OF   A 

ner  have  a  lien  upon  his  surplus  share  in  the  joint  estate, 
yet  that  cannot  be  ascertained  until  the  claims  upon  the 
joint  fund,  both  by  creditors  and  by  the  partnership,  are 

discharged.  There  may  not  be  any  demands 
[  *322  ]  from  third  persons,  *but  yet  if  one  partner  has 

a  claim  upon  the  other,  the  latter  cannot  take 
any  thing  until  the  claim  of  the  former  is  satisfied.  In 
fact  the  actual  interest  of  the  insolvent  partner  may  be 
great,  it  may  be  little,  or  it  may  be  nothing  at  all.(jo) 
Where,  therefore,  there  is  a  surplus  of  joint  estate,  the 
interest  of  a  bankrupt  partner  in  it  is  not  available  to  his 
separate  creditors  until  any  subsisting  demand  of  his  co- 
partner against  it  is  discharged.  This  principle,  which 
is  founded  in  equity  and  justice,  was  established  in  an 
early  case.(^)  There  Richardso?is,  senior  and  junior,  and 
Gonson  were  partners,  and  Gonson  embezzled  and  wast- 
ed the  joint  stock,  and  contracting  private  debts  became 
a  bankrupt.  The  court  seemed  to  think  that  out  of  the 
produce  of  the  goods  the  debts  owing  by  the  joint  trade 
ought  to  be  paid  in  the  first  place,  and  that  out  of  Gon- 
soii's  share  satisfaction  must  be  made  for  what  Gonson 
had  wasted  or  embezzled,  and  that  the  assignees  could  be 
in  no  better  condition  than  the  bankrupt  himself,  and  were 
entitled  only  to  take  what  his  third  part  would  produce  af- 
ter debts  paid  and  deductions  for  his  embezzlement.  This 
rule  has  been  confirmed  by  a  decree  made  by  Lord  Talbot 
in  a  case  in  which  a  bill  was  filed  by  Gos  and  Neaulme 
Gi'omvegan  against  the  assignees  of  Prevost,  setting  forth 
that  Goss,  Gromvcgan,  and  Prevost,  became  partners ; 
that  Prevost  was  intrusted  with  the  goods  in  the  shop  and 
warehouse,  but  embezzled  the  co-partnership  stock,  and 
applied  the  same  to  his  own  use,  and  suffered  the  part- 
nership debts  to  be  unpaid,  and  having  contracted  pri- 

(/))  In  re  Wait,  ante. 

(q)  Richardson  v.  Gooding,  2  Vern.  293.  It  seems  that  a  general 
loan  of  money  by  one  partner  to  another,  which  has  no  relation  to  and 
is  not  applied  to  the  partnership  trade,  does  not  give  to  the  lender  a 
specific  lien  upon  the  share  of  the  borrower,  so  as  to  entitle  him  to  be 
preferred  to  separate  creditors,  either  in  the  case  of  a  bankruptcy  or 
after  the  death  of  a  partner,  where  his  effects  have  become  subject  to 
the  rule  of  distributing  assets.  8ee  the  judgments  of  Lord  Chief  Jus* 
tice  Lee  and  Lord  Hardwicke  in  Ryal  v.  Rowlcs,  1  Atk.  181.  184. 


DISSOLUTION    BY    BANKRUPTCY.  322 

vate  debts  on  his  own  account,  became  a  bankrupt,  and 
a  separate  commission  was  taken  out  against  him.     A 
question  being  raised  whether  Frevosfs  share  of  the  part- 
nership stock  ought  not  to  be  appUed  in  the  first  place  to 
pay  what  he  was  indebted  to  the  partnership,  Lord  7a/- 
bot  ordered  an  account  of  what  Prevost  had  embezzled  of 
the  co-partnership  estate,  and  that  the  partnership  debts 
should,  in  the  first  place,  be  paid  as  far  as  the  co-partner- 
ship estate  would  extend ;  and  that  if  any  of  the  partner- 
ship estate  remained  after  the  joint  debts  were 
paid,  then  the  same  to  be  *divided,  and  the  part-  [  *323  ] 
nership  to  be  paid  out  of  Prevost'' s  share  what  he 
had  embezzled.(r)     And  it  has  been  settled  by  subse-' 
quent  adjudications,  that  if  the  surplus  is  not  sufficient  to 
pay  the  solvent  partner  all  that  is  due  upon  his  debt,  he 
is  entitled  to  come  in  with  the  separate  creditors  of  the 
other  partner  upon  his  separate  estate.(s)     A  retired 
partner,  who  had  permitted  his  name  to  be  continued,  has 
been  held  not  entitled  to  prove,  until  a  discharge  by  in- 
demnity or  otherwise  from  the  joint  creditors  was  pro- 
duced.(^) 

Where  one  partner  remains  solvent^  and  is  a  creditor  of 
his  bankrupt  co-partner,  there  is  no  doubt  but  that  proof 
of  his  debt  may  be  admitted  under  a  separate  commission 
against  the  latter  ;(ii)  although,  if  there  be  any  outstand- 
ing joint  debts,  they  must  either  be  discharged,(?;)  or  the 

(r)  Goss  V.  Dufresnoy,  Davies,  371.  2  Eq.  Abr.  110.  See  also 
Hankey  v.  Garret,  1  Ves.  jun.  236.     S.  C.  3  Bro.  C.  C.  457. 

(s)  Ex  -parte  King,  17  Ves.  115.     Ex  parte  Terrell,  Buck,  345. 

{t)  Ex  parte  Ellis,  2  Glyn  &  James.  312. 

(«)  Ex  parte  Drake,  cited  1  Atk.  225.  Craven  v.  Knight,  2  Ch. 
Rep.  226.  There  is  a  case  which  militates  against  this  rule,  in  which 
it  seems  to  have  been  decided  that  such  proof  could  not  be  admitted. 
It  was  an  application  by  a  person  who  stated  that  he  had  been  fraudu- 
lently induced  to  engage  in  a  partnership,  and  to  pay  a  premium  of 
1000/.,  upon  admission  as  a  member  of  the  firm,  to  prove  such  lOOOZ. 
upon  the  bankruptcy  of  the  person  with  whom  he  had  been  so  fraudu- 
lently induced  to  join  in  partnership ;  and  Lord  Eldon,  after  observing 
that,  although  the  petitioner  might  have  an  equity  to  be  considered  as 
never  having  been  a  partner,  yet  that  it  was  extremely  difficult  to  say  as 
to  third  persons  he  was  not  a  partner,  ordered  that  the  petitioner  be  at 
liberty  to  enter  a  claim,  but  not  to  prove  with  the  separate  creditors. 
Ex  parte  Broome,  1  Rose,  69. 

[v)  Ex  parte  Taylor,  2  Rose,  175. 


323  THE  CONSEQUENCES  OF  A 

joint  estate  must  be  indemnified  before  such  proof  will 
be  admitted,  since  the  proof  of  a  partner  will  not  be  al- 
lowed to  come  in  conflict  with  that  of  the  joint  credit- 
ors.(w)  And  formerly,  where  the  claim  of  an  individual 
partner  originated  in  his  having  discharged  joint  debts,  it 
w^as  essential,  in  order  to  entitle  him  to  prove  against  the 
separate  estate  of  his  bankrupt  partner  for  his  propor- 
tion, that  the  debts  should  have  been  discharged,  and  the 
claim  should  have  arisen  antecedently  to  the  bankruptcy. 
For  if  the  right  of  calling  upon  the  bankrupt  partner  for 
contribution  did  not  accrue  until  after  he  became  bank- 
rupt, the  only  redress  the  solvent  partner  had  was  by 
action  at  law  or  by  bill  in  equity.(x)  The  rule,  how- 
eyer,  in  that  respect,  is  now  inverted,  and  by  Sir 
[*324]  Samuel  Romilly''s  *Act,(y)  the  debt,  if  paid  sub- 
sequently to  the  bankruptcy,  cannot  be  made  the 
foundation  of  an  action,  but  must  be  proved  under  the 
commission.  Thus,  where  upon  a  dissolution  of  partner- 
ship between  three  partners,  two  of  the  three  assigned  to 
the  other  all  their  share  in  the  partnership  debts-  and  ef- 
fects, and  the  other  covenanted  to  pay  all  debts  due  from 
the  partnership,  and  to  indemnify  the  two  from  the  pay- 
ment of  the  same,  and  from  all  actions  and  costs  by  rea- 
son of  the  nonpayment  of  the  same,  and  afterwards  be- 
came bankrupt,  when  the  two  were  obliged  to  pay ;  upon 
the  question,  whether  they  could  have  proved  under  his 
commission.  Lord  Ellenhorough  observed,  that  though 
they  were  liable  at  law  as  co-debtors  with  the  bankrupt, 
for  his  and  their  own  debt,  yet  in  equity  he  was  solely 
liable,  and  they  were  sureties ;  for  by  the  covenant  he 
became,  as  between  the  parties  to  the  covenant,  the  prin- 
cipal debtor;  the  debt  was  his  debt,  although  as  to  other 
parties  the  solvent  partners  still  remain  liable,  and  there- 
fore when  they  paid  the  debt,  they  paid  in  his  discharge, 
and  the  court  accordingly  held  their  claim  discharged  by 
the  certificate.(r)     And  in  a  more  recent  case  it  was  de- 

(w)  Ex  parte  Ogilby,  3  Ves.  &  Bea.  133.     S.  C.  2  Rose,  177. 
(x)  Wright  V.  Hunter,  1  East,  20.     S,  C.  5  Ves.  792. 
(y)  49  Geo.  3.  c.  121.  s.  8,  repealed  and  re-enacted  by  the  6  Geo. 
4.  c.  16.  s.  52. 

(z)  Wood  V.  Dodgson,  2  Man.  &  Selw.  195. 


DISSOLUTION    BY    BANKRUPTCY.  324 

cided,  that  where  on  the  dissolution  of  a  partnership  the 
continuing  partners  covenant  to  pay  all  the  joint  debts, 
on  the  bankruptcy  of  such  partners,  the  outgoing  part- 
ner may  prove  the  amount  of  debts  which  he  has  been 
compelled  to  pay  since  the  dissolution.(a)     So  where 
upon  the  retirement  of  one  partner,  the  continuing  part- 
ners taking  the  concern  in  its  actual  state,  undertook  by 
deed  to  indemnify  the  former,  it  being  then,  as  to  part- 
nership effects,  insolvent ;  and  upon  the  death  of  one, 
and  the  bankruptcy  of  the  other  continuing  partner,  the 
retiring  one  had  been  called  upon  to  pay ;  it  was  held, 
that  the  permitting  the  one  to  retire  without  taking  from 
him  the  proportion  of  the  deficiency,  did  not  necessa- 
rily make  the  deed  fraudulent  as  against  the  remaining 
partners,  and  that  the  former  was  therefore  entitled  to 
prove  under  the  commission.(Z»)     And  where  a  dissolu- 
tion of  the  partnership  has  taken  place  previously  to  the 
bankruptcy  of  some  of  the  partners,  and  those  part- 
ners, on  closing  the  transactions   of  the  partnership, 
have  been  found  indebted  to  the  others,  proof  of  the 
debt  will  be  admitted  under  the  commission: 
*and  if  the  bankrupts  have  covenanted  by  the  [  *325  ] 
deed  of  dissolution  to  pay  the  debt,  it  will  be  no 
objection  to  the  proof  of  the  solvent  partners  that  they 
subsequently  bargained  by  parol  for  a  mode  of  payment 
which  infected  the  debt  with  usury,  for  such  an  agree- 
ment amounts  only  to  an  accord,  which  cannot  be  con- 
sidered a  performance  or  satisfliction  of  a  specialty;  and 
it  is  settled  that  where  a  bona  fide  debt  is  due,  the  right 
to  claim  it  is  not  invalidated  by  a  subsequent  usurious 
agreement.(c)     Thus,  in  a  late  case,  it  appeared  that  A, 
B,  and  C  carried  on  the  business  of  bankers  in  copart- 
nership ;  A  advanced  large  sums  of  money  to  the  con- 
cern, which  he  raised  by  selling  out  stock,  and  he  took 
separate  bonds  for  18,000/.  from  B,  and  C  conditioned 
for  replacing  of  9000/.  three  per  cent,  consols  by  each, 
being  their  respective  proportions  of  the  stock  sold  by 

(a)  Parker  v.  Ramsbottom,  3  B.  &  C.  257.     S.  C.   5  D.  &  R.  138. 
(6)  Ex  parte  Carpenter,  1  Mont.  &  M.  1. 

(c)  Com.  Dig.  Usury,  (B.)  Pollard  v.  Scholey,  Cro.  Eliz.  20.  Fer- 
rall  V.  Shaon,  1  Saund.'294.     Gray  v.  Fowler,  1  H.  Bl.  462. 

54 


325  THE  CONSEQUENCES  OF  A 

A.  The  stock  not  being  replaced,  A  brought  actions 
and  recovered  judgments  on  the  bonds.  A  afterwards 
retired  from  the  concern,  and  at  that  time  20,000/.  three 
per  cent,  consols  was  due  to  him ;  by  the  deed  of  dis- 
solution B  and  C  covenanted  to  replace  it  by  four  instal- 
ments, and  that  if  they  failed  to  do  so,  A  might  resort  to 
the  judgments  recovered  on  the  bonds;  and  further,  that 
he  should  have  a  lien  on  certain  specified  securities  for 
that  debt.  One  instalment  was  replaced  when  due,  but 
B  and  C  having  failed  to  replace  the  second,  a  new  ar- 
rangement (not  under  seal)  was  entered  into,  whereby  it 
was  agreed  that  the  transaction  should  be  considered  as 
a  loan  of  money  from  the  first,  and  that  the  sum  pro- 
duced by  the  sale  of  the  15,000/.  three  per  cent,  consols 
which  remaineded  due,  which  was  10,083/.  should  be  the 
debt,  and  be  repaid  at  a  future  day  with  five  per  cent, 
interest.  The  value  of  15,000/.  three  per  cent,  consols 
at  the  date  of  this  last  agreement  was  8437/.  Before 
any  part  of  the  10,083/.  was  paid,  B  and  C  became 
bankrupts,  and  at  the  issuing  of  the  commission,  two  out 
of  the  three  remaining  days  fixed  by  the  deed  of  disso- 
lution for  the  retransfer  of  stock  had  passed.  It  was 
held  that  the  second  agreement  was  void  for  usury,  but 
that  the  deed  of  dissolution  remained  binding,  and  that 
A  might  prove  under  the  commission  against  B  and  C 
for  the  15,000/.  three  per  cent,  consols ;  the  value  of  the 
two  instalments  due  before  the  bankruptcy  to  be  ascer- 
tained by  the  price  of  consols  on  the  days  when  those 

sums  respectively  became  due ;  the  value  of  the 
[  *326  ]  third  *to  be  taken  at  the  price  of  consols  on  the 

day  when  the  commission  issued,  with  a  rebate 
for  the  interval  between  that  day  and  the  day  fixed  for 
the  retransfer  of  that  instalment;  and  further  that  A 
still  had  the  lien  given  by  the  deed.(£?)  The  right  of 
solvent  partners  who  have  paid  all  the  joint  debts  to 
prove  against  the  separate  estate,  is  also  sustainable  on 
the  ground  that  they  are  in  the  nature  of  sureties  or  per- 
sons liable,  and  accordingly  entitled  to  prove  under  the 
provisions  of  Sir  Samuel  Romilly's  Act;  a  right  which 

(rf)  Parker  v.  Ramsbottora,  3  B.  &  C.  257.    S.  C.  5  D.  &  R.  138. 


DISSOLUTION    BY    BANKRUPTCY.  326 

has  been  expressly  recognised  in  several  cases,  wherever 
it  does  not  affect  creditors  claiming  in  competition  with 
them.  Thus,  where  the  acting  partner  of  a  firm  had 
made  an  unauthorised  use  of  the  partnership  name,  by- 
creating  liabilities,  the  produce  of  which  he  had  applied 
to  his  separate  use,  and  became  bankrupt ;  the  solvent 
partners  having,  after  the  bankruptcy,  satisfied  the  lia- 
bilities out  of  their  own  funds,  and  paid  all  the  partner- 
ship debts,  were  held  entitled  to  prove  the  whole  amount 
so  charged  by  the  bankrupt  upon  the  partnership  funds 
against  his  separate  estate ;  and  Lord  Eldon  said  "  that 
if  it  were  necessary  to  seek  any  support  to  the  moral 
justice  of  the  case,  the  49  Geo.  3.  c.  121.  s.  8.  would 
supply  it;  and  he  considered  that  the  solvent  partners 
were  entitled  to  prove  under  the  description  in  the  act  of 
persons  liable.^\e)  So,  a  solvent  partner  has  been  held 
entitled  to  prove  against  the  estate  of  a  bankrupt  co- 
partner the  amount  of  the  balance  due  to  him  upon  the 
partnership  account,  first  satisfying  the  partnership  debts, 
or  indemnifying  the  bankrupt's  estate  against  them.(/) 
And  in  another  case  under  a  joint  commission,  the  sepa- 
rate estate  of  one  was  determined  to  have  a  lien  on  the 
other's  share  of  a  surplus  of  the  joint  estate,  in  respect 
of  a  debt  proved  upon  bills  drawn  by  the  one  in  the 
name  of  the  firm  for  a  separate  debt;  and  that  the 
joint  creditors  might  come  in  with  separate  creditors 
for  the  deficiency.(g)  So  in  a  recent  case,  where  under 
a  separate  commission  accounts  of  the  joint  and  sepa- 
rate estates  had  been  kept,  and  there  was  a  surplus  of 
the  former,  the  bankrupt  being  indebted  upon  taking 
the  partnership  accounts,  it  was  holden  that  the  sol- 
vent partners  were  entitled  to  the  surplus,  and  if  it 
were  insufficient,  they  were  to  be  at  liberty 
*to  prove  against  the  separate  estate  for  the  dif-  [  *327  ] 
ference.(^)  But  it  seems  that  proof  will  not 
now  be  admitted  by  a  solvent  partner  against  the  sepa- 

(e)  Ex  parte  Yonge,  3  Ves.  &  Bea.  31.     S.  C.  2  Rose,  40.     See 
also  Ex  parte  Ogilby,  3  Ves.  &  Bea.  133.     S.  C.  2  Rose,  177. 

(f)  Ex  parte  Taylor,  2  Rose,  175. 

(g)  Ex  parte  King,  17  Ves.  115. 
{h)  Ex  parte  Terrell,  Buck,  345. 


327  THE  CONSEQ,UENCES  OF  A    ' 

rate  estate  until  the  joint  debts  are  actually  paid,  and 
mere  proof  has  been  said  to  be  payment  only  so  far 
as  it  produces  payment.(i)  Where  a  solvent  partner 
has  paid  all  the  joint  debts,  it  has  been  a  question  whe- 
ther, if  the  estate  of  one  of  the  bankrupts  is  insufficient 
to  pay  20s.  in  the  pound,  the  solvent  partner  will  be  al- 
lowed to  prove  the  deficiency  of  each  estate  against  the 
estate  of  the  other?  Sir  John  Leach  has,  in  two  in- 
stances,(A:)  determined  against  such  right.  His  Honour 
has  considered  that  proof  is  equivalent  to  payment 
without  regard  to  the  amount  of  the  dividend,  and  that 
the  principle  is,  that  the  surety  is  to  prove  for  such  sum, 
as,  at  the  time  of  the  bankruptcy,  the  principal  debtor 
was  bound  to  pay  or  provide.  It  must  be  observed, 
however,  that  considerable  doubts  have  been  entertained 
of  the  soundness  of  this  doctrine,(/)  and  that  it  has  been 
considered  that  the  equitable  principles  applicable  to 
cases  of  principal  and  surety,  independent  of  contract, 
as  to  enforcing  contribution,  have  not  been  sufficiently 
attended  to  in  them.  A  solvent  partner  has  been  appoint- 
ed receiver  of  the  partnership  property,  but  without  a 
salary.(m)  ' 

Formerly,  if  a  creditor  proved  a  debt  under  a  com- 
mission of  bankruptcy,  it  did  not  amount  to  a  conclusive 
election  to  take  under  the  commission,  for  a  creditor  has 
been  suffered  to  make  his  election  of  proceeding  at  law 
against  the  bankrupt  himself,  after  having  proved  his 
debt  and  received  two  dividends,  upon  condition  of  re- 
funding what  he  had  received.(n)  But,  by  a  modern 
statute,(o)  it  is  enacted,  that  the  proving  or  claiming  a 
debt  under  a  commission  by  any  creditor  shall  be  deemed 
an  election  by  the  creditor  to  take  the  benefit  of  the 
commission,  with  respect  to  the  debt  proved  or  claimed, 

(i)  Ex  parte  Moore,  2  Gl.  &  James.  165,  overruling  the  decision 
of  the  Vice-Chancellor  in  S.  C.  Buck,  492.  See  also  Ex  parte  Carter, 
2  Gl.  &  James.  2.33.     Ex  parte  Ellis,  ibid.  312. 

(A;)  i;.r;;ar/e  Watson,  4  Madd.  477.  S.  S.  Buck,  450.  Ex  parte 
Smith,  Buck,  492. 

(I)   Ex  parte  Hunter,  Buck,  552. 

\ni)  Ex  parte  Stoveld,  1  Glyn  &  James.  303. 

(n)  Co.  B.  L.  146. 

(o)  49  Geo.  3.  c.  121.  s.  14.     See  the  6  Geo.  4.  c.  16.  s.  59. 


DISSOLUTION    BY    BANKRUPTCY.  327 

provided  that  where  any  such  creditor  shall  have  brought 
any  action  against  the  bankrupt  jointly  with  any  other 
person,  his  relinquishing  such  action  against 
*the  bankrupt  shall  not  in  any  manner  affect  it  [  *328  ] 
against  such  other  person.  This  clause  does 
not  extend  to  prevent  a  creditor,  who  proves  a  joint 
debt  under  a  commission  against  one  partner,  from 
suing  the  others.(yj)  And  where  separate  commissions 
were  issued  against  three  out  of  four  partners,  to  which 
they  conformed  and  passed  their  examinations,  and  an 
order  was  made  by  the  Lord  Chancellor,  allowing  the 
joint  creditors  to  prove  their  debts  under  the  commission 
of  one  of  the  three ;  under  that  order  a  joint  creditor 
proved  his  debt,  and  afterwards  sued  all  the  partners 
for  the  same  debt,  and  arrested  one  of  the  other  two 
under  whose  commission  he  had  not  proved ;  it  was  de- 
termined by  the  Court  of  King's  Bench  that  the  proof  of 
the  debt  against  the  estate  of  one  was  not  an  election 
within  the  meaning  of  the  statute,  so  as  to  prevent  the 
creditor  proceeding  against  the  others  by  action,  and 
therefore  that  the  bankrupt  arrested  was  not  entitled  to 
be  discharged  out  of  custody.(9)  But  where  two  part- 
ners gave  a  joint  and  several  bond  to  a  third  person, 
who  afterwards  became  indebted  to  one  of  them,  and 
the  other  having  became  bankrupt,  the  obligee  proved 
the  bond  under  the  commission,  and  then  brought  a  joint 
action  against  both  the  partners,  to  which  the  bankrupt 
pleaded  his  certificate  j  the  Lord  Chancellor  held  that 
the  obligee,  having  elected  to  proceed  severally  by  prov- 
ing the  bond  under  the  commission,  was  not  at  liberty 
to  bring  a  joint  action  upon  it,  but  must  proceed  against 
the  solvent  partner  alone.(r)  And  before  the  passing  of 
the  foregoing  statute,  if  a  creditor  had  debts  due  to  him 
from  the  bankrupt  of  distinct  natures,  or  in  different 
rights,  he  was  at  liberty  to  prove  one  under  the  commis- 

(p)  Heath  V.  Hall,  4  Taunt.  326. 

[q)  Young  v.  Glass,  16  East,  252.  It  has  been  said,  that  in  equity, 
the  creditor  could  not  proceed  against  any  of  the  bankrupts,  Mont. 
Dig.  of  New  Decis.  in  Bank.  1st  part,  p.  42.  n.  {z).  See  JEx  parte 
Bolton,  Buck,  12. 

(r)  Bradley  v.  Millar,  1  Rose,  273. 


328  THE    CONSEQUENCES   OF    A 

sion,  and  proceed  at  law  for  the  recovery  of  the  other.(s) 
But  in  a  late  case  it  was  laid  down,  that  if  a  creditor 
has  debts  due  to  him  from  the  same  person  of  a  dis- 
tinct nature,  and  he  proceeds  at  law  for  the  reco- 
very of  the  one,  and  afterwards  proves,  or  claims  to 
prove  the  other  under  the  commission,  such  proof  or 
claim  operates  as  a  relinquishment  of  the  action  pre- 
viously brought.  Thus,  where  one  partner  arrested, 
and  was  proceeding  in  an  action  against  his 
[  *329  ]  ^copartner  on  a  promissory  note,  and  after- 
wards had  a  claim  entered  upon  the  proceedings 
under  a  commission  against  him  on  a  letter  of  guaran- 
tee, it  was  held  that  such  claim  was  an  election  to  take 
the  benefit  of  the  commission,  and  that  it  operated  as  a 
relinquishment  of  the  action.(^)  However,  in  a  more 
recent  case,  where  the  bankrupt  paid  for  goods  sold  and 
and  delivered  by  a  bill  of  the  exact  amount,  and  after- 
wards by  a  second  and  distinct  contract,  purchased 
others,  for  which  afterwards  a  bill  was  also  given ;  upon 
his  becoming  bankrupt,  the  first  bill  was  proved  under 
the  commission,  at  which  time  the  second  was  out- 
standing in  the  hands  of  a  third  person,  to  whom 
it  had  been  indorsed  for  valuable  consideration,  but  it 
had  been  dishonoured,  and  notice  thereof  given  to  the 
vendor;  it  was  subsequently  returned  to  him,  and  he 
commenced  an  action  on  it  in  the  Court  of  King's 
Bench ;  it  was  held,  upon  the  construction  of  the  latter  part 
of  the  clause  of  the  6  Geo.  4.  c.  16.  s.  59,  and  with  refer- 
ence to  the  decisions  at  law,  that  the  effect  of  proof  was 
an  election  only  as  to  the  particular  debt  proved;  and 
that  to  constitute  distinct  debts,  it  is  not  requisite  that 
they  should  be  of  distinct  natures,  but  it  is  sufficient  if 
they  arise  upon  distinct  contracts,  and  the  vendor  was 
therefore   not   precluded   from   proceeding   at    law.(M) 

(s)  Ex  parte  Botterill,  1  Atk.  109.     Ex  parte  Matthews,  3  Atk.  816. 

(t)  Ex  parte  Glover,  1  GTlyn  &  James.  270.  It  seems  that  the 
statute  does  not  apply  to  actions  for  distinct  demands  brought  subse- 
quent to  proof  or  claim.  Id.  ibid. ;  and  see  Ex  parte  Dickson,  1  Rose, 
98.  Ex  parte  YizxAenherg,  1  Rose,  204.  Ex  parte  Chambers,  1  Mont. 
&  M.  130. 

(m)  Ex  parte  Edwards,  1  Mont.  &  M.  116,  reversing  the  decision  of 
the  Vice  Chancellor ;  semble,  it  would  not  have  varied  the  right,  if  the 


DISSOLUTION    BY    BANKRUPTCY.  329 

When  the  bankrupt  under  whose  commission  the  credit- 
or has  proved  is,  for  the  sake  of  conformity,  a  necessary 
party  to  an  action  against  the  other  partners, — as  a 
court  of  law  will  not,  if  he  be  joined,  interfere  by  order- 
ing a  nolle  prosequi  to  be  entered, — the  Lord  Chancellor 
will  direct  the  creditor  to  indemnify  the  bankrupt  against 
all  the  expenses  of  the  action,  and  not  to  take  advantage 
of  the  verdict  and  judgment  against  him ;  and  if  an  in- 
demnity be  not  given,  he  will  order  the  bankrupt's  name 
to  be  struck  out.(i>) 

Both  joint  and  separate  creditors^  whatever  doubts  may 
have  been  entertained  as  to  their  respective  rights 
to  receive  satisfaction,  *have  always  been  allow-  [  *330  ] 
ed  to  prove  their  debts  under  joint  and  separate 
commissions,  for  the  purpose  of  assenting  or  objecting  to 
the  certificate. (w)  This  natural  justice  requires,  for  all 
debts,  whether  joint  or  separate,  are  equally  discharged 
by  the  certificate  under  either  a  separate  or  a  joint  com- 
mission. The  statutes  say  nothing  about  joint  or  sepa- 
rate debts,  or  joint  or  separate  commissions,  but  dis- 
charge the  bankrupt  generally  from  all  debts  due  or 
owing  by  him  before  he  became  bankrupt ;  and  a  joint 
debt  is  the  debt  of  each  partner,  as  well  as  the  debt  of 
all  the  partners  jointly.  After  the  passing  of  the  statute 
4  &  5  A7in.  c.  17,  a  doubt  arose  whether  the  certificate 
obtained  by  one  partner  or  joint  debtor  should  discharge 
the  other,  or  he  should  still  be  liable  to  the  debt  as  if  the 
bankrupt  had  never  been  discharged.  To  remove  which, 
by  the  statute  10  Ann.  c.  15.  s.  3.(^)  it  was  enacted  and 
declared,  that  "  the  discharge  of  any  bankrupt  or  bank- 
rupts, by  force  of  the  said  act,  or  any  other  acts  relating 
to  bankrupts,  from  the  debts  by  him,  her,  or  them,  due 
and  owing  at  the  time  that  he,  she,  or  they  did  become 
a  bankrupt,  shall  not  be  construed,  nor  was  meant  or 

vendor  had,  at  the  time  of  his  proof  on  the  first  bill,  also  been  the 
holder  of  the  second.  Id.  ibid. ;  and  see  Watson  v.  Medex.  1  B.  & 
A.  121.  Harley  v.  Greenwood,  5  B.  &;  A.  95.  Bridgett  v.  Mills,  4 
Bingh.  18. 

iv)    Ex  parte  Read,  1  Ves.  &  Bea.  346.     S.  C.  1  Rose,  460. 

{w)  Ex  parte  Taitt,  16  Ves.  193.  Whitm.  B.  L.  276.  See  the  6 
Geo.  4.  c.  16.  s.  62. 

(x)  Re-enacted  by  the  6  Geo.  4.  c.  16.  s.  121. 


330  THE    CONSEGtUENCES    OF    A 

intended  to  release  or  discharge  any  other  person  or 
persons  who  was  or  were  partner  or  partners  with  the 
said  bankrupt  in  trade,  at  the  time  he,  she,  or  they  be- 
came bankrupt,  or  then  stood  jointly  bound  or  had  made 
any  joint  contract  together  with  such  bankrupt  or  bank- 
rupts for  the  same  debt  or  debts  from  which  he  was  dis- 
charged as  aforesaid,  but  that,  notwithstanding  such 
discharge,  such  partner  and  partners,  joint  obligor  and 
obligors,  and  joint  contractors  with  such  bankrupt  and 
bankrupts  as  aforesaid,  shall  be  and  stand  chargeable 
with  and  liable  to  pay  such  debt  and  debts,  and  to  per- 
form such  contracts,  as  if  the  said  bankrupt  and  bank- 
rupts had  never  been  discharged  from  the  same."  The 
expediency  and  necessity  of  this  legislative  provision, 
although  no  doubt  introduced  ex  majori  cautela,  may  still 
be  open  to  argument  and  observation.  It  is  difficult  to 
conceive  how  the  signing  a  bankrupt's  certificate  could 
have  operated  as  an  ordinary  release  with  regard  to  any 
third  person;  for  it  is  the  act  of  parliament  which  gives 

that  release,  in  consequence  of  the  certified  con- 
[  *331  ]  formity  of  the  bankrupt  to  the  ^requisitions  of 

the  bankrupt  laws.  A  man,  by  signing  a  certi- 
ficate, does  not  release  his  own  debt,  unless  the  requi- 
site number  of  creditors  afterwards  sign ;  and  if  they  do 
sign,  the  debts  of  those  who  do  not  sign  are  as  much  re- 
leased as  the  debts  of  those  who  do  sign.  But  however 
this  may  have  been,  independently  of  the  statute,  all 
question  on  the  subject  is  put  at  rest  by  its  enactment. 
It  has  been  decided  that  a  creditor  by  signing  the  certi- 
ficate of  a  surviving  partner  does  not  thereby  release  the 
estate  of  a  deceased  partner.(?/)  In  a  late  case,  upon 
the  petition  of  the  solvent  partner,  to  whom  no  want  of 
due  diligence  was  imputable,  the  certificate  of  his  bank- 
rupt partner  was  stayed  until  the  partnership  accounts 
could  be  taken  before  the  commissioners.(2')  But  where 
a  certificate  under  a  separate  commission  is  lying  before 
the  Lord  Chancellor  for  allowance,  it  will  not  be  stayed 
merely  because  a  joint  commission  is  issued.  And  if  the 
certificate  is  fairly  obtained,  the  Lord  Chancellor  will 

(y)  Sleech's  case,  1  Meriv.  570. 

(z)  Ex  parte  Hadley,  1  Glyn  &,  James.  193. 


DISSOLUTION    BY    BANKRUPTCY.  331 

allow  it,  and  to  give  it  effect  will  impound  the  separate 
commission  in  the  bankrupt  office  instead  of  superseding 
it(a) 

We  will  now  proceed  to  examine  the  law  of  set-off 
under  commissions  against  partners,  which  respects  joint 
and  separate  commissions  equally,  and  regulates  both 
the  collection  and  distribution  of  the  estate  of  the  bank- 
rupts. The  right  of  set-off  in  these  cases,  may  be  con- 
sidered either  as  it  is  given  by  statute,  and  therefore 
exists  at  law,  or  as  it  prevails  in  equity.  To  the  former 
we  will,  in  the  first  instance,  advert.  When,  at  the  time 
of  the  act  of  bankruptcy,  there  are  cross  demands  sub- 
sisting between  the  bankrupt  and  a  creditor,  the  latter, 
by  setting-off  his  debt  against  the  demand  upon  him, 
stands  in  a  better  situation  than  those  creditors  who, 
not  being  indebted  to  the  bankrupt's  estate,  can  only 
prove  their  debts  under  the  commission,  and  receive  di- 
vidends. In  equity,  long  anterior  to  the  statutes  per- 
mitting a  set-off,  a  party  might  avail  himself  of  any 
cross-demand,  and  preclude  his  creditor  from  recovering 
more  than  the  balance  which  might  be  due  to  him  on  a 
fair  adjustment  of  accounts.  And  though  the  spirit  of  the 
bankrupt  laws  is  to  make  an  equal  distribution  amongst 
all  the  creditors,  yet  this  must,  in  justice,  be 
governed  by  the  nature  of  the  dealings  *between  [  *332  ] 
the  parties;  and  as  it  may  be  fairly  presumed, 
that  where  mutual  transactions  have  taken  place  be- 
tween a  bankrupt  and  another  trader,  they  have  respec- 
tively given  greater  credit  to  each  other  than  would  have 
taken  place  in  any  separate  ex  parte  dealings ;  it  is  there- 
fore just,  that,  in  the  case  of  bankruptcy,  their  mutual 
demands  should  be  set  against  each  other.  Formerly, 
indeed,  it  was  determined,  that  the  statute  for  setting-off 
mutual  debts  did  not  extend  to  assignees  of  bankrupts, 
because  the  debts  cannot  be  mutual,  unless  the  remedies 
are  so  likewise  ;(6)  but  the  case  of  bankruptcy  has  in 
several  instances  been  the  object  of  legislative  provi- 

(a)  Ex  parte  Tobin,  1  Ves.  &  Bea.  308. 

{b)  Ryal  V.  Larkin,  1  Wils.  155.     Ball.  N.  P.  177.     But  see  Re- 
doubt V.  Brough,  Cowp.  135.     Anon.  1  Mod.  215,  contra. 

55 


332 


THE    C0NSEQ,UENCBS   OF  ,  A  *  i  \ 


sioii,(c)  and  now  by  a  late  statute(J)  it  is  enacted  "  t\M 
where  there  has  been  mutual  cradit  given  by  the  bank- 
rupt and  any  other  person,  or  where  there  are  mutual 
debts  between  the  bankrupt  and  any  other  person,  the 
commissioners  shall  state  the  account  between  them,  and 
one  debt  or  demand  may  be  set  against  another,  not- 
withstanding any  prior  act  of  bankruptcy  committed  by 
such  bankrupt  before  the  credit  given  to  or  the  debt  con- 
tracted by  him;  and  what  shall  appear  due  on  either 
side  on  the  balance  of  such  account,  and  no  more,  shall 
be  claimed  or  paid  on  either  side  respectively  ;  and  every 
debt  or  demand  hereby  made  provable  against  the  estate 
of  the  bankrupt,  may  also  be  set-off  in  manner  aforesaid 
against  such  estate :  provided,  that  the  person  claiming 
the  benefit  of  such  set-off  had  not,  when  such  credit  was 
given,  notice  of  an  act  of  bankruptcy  by  such  bankrupt 
committed."  It  is  observable,  that  this  statute,  as  well 
as  the  statutes  which  preceded  it,  unlike  the  statutes  of 
set-off,  relate  not  only  to  mutual  debts,  but  embrace  also 
mutual  credits.  We  have  already  inquired(e)  what  are 
to  be  considered  as  mutual  debts,  and  therefore  capable 
of  being  set  against  each  other.  Our  observations  in 
this  place  will  consequently  be  directed  to  ascertain 
what  is  a  mutual  credit  within  the  statute,  and  in  what 
cases,  as  affecting  partners,  it  is  allowed  to  form  the  sub- 
ject-matter of  set-off.  Mutual  credit  is  a  term  of  more 
comprehensive  signification  than  mutual  debts;  it  imports 
something  beyond  what  is  conveyed  by  the  idea  of  a  mu- 
tuality of  debt.  Lord  Mansfield  has  observed, 
[  *333  ]  that  the  *legislature  provided  for  mutual  credit,  in 
order  to  avoid  the  injustice  which  would  ensue, 
were  the  right  of  set-off  confined  to  cases  of  mutual  debts 
only.(y)  And  the  courts,  both  of  law  and  equity,  have 
not  only  ascribed  to  mutual  credit,  as  contradistinguished 
from  mutual  debts,  a  more  extended  operation,  but  the 
term,  of  itself  extensive,  has  been  enlarged  by  a  most 
liberal  construction.    It  has  been  applied  to  cases  where 

(c)  4  Anne,  c.  17.  s.  11.     7  Anne,  c.  25,  s.  4.     5  Geo.  1.  c.  24.    5 
Geo.  2.  c.  30.  s.  28.     46  Geo.  3.  c.  135.  s.  3. 

(d)  6  Geo.  4.  c.  16.  s.  50.  (e)  See  ante,  p.  137. 
(/)  French  v.  Fenn,  Co.  B.L.  538. 


DISSOLUTION    BY    BANKRUPTCY.  '  333 

parties  have  been  trusting  each  other  at  the  time  of  the 
bankruptcy,  and  has  never  been  narrowed  to  pecuniary 
demands  which  were  then  hquidated:  and,  a  doctrine 
which  seems  founded  on  notions  of  natural  equity,  the 
statute  authorises  the  bringing  into  mutual  account  a 
great  variety  of  items,  which  could  not  be  made  the 
subject  of  set-off.     The  term  mutual  credit  is,  however, 
confined  to  demands  on  such  credits  only  as,  in  their 
nature,  will  terminate  in  a  debt.     For  instance,  mutual 
credit  arises  where  a  debt  is  due  from  one  party,  and 
credit  is  given  by  him  to  the  other  for  a  sum  of  money 
payable  at  a  future  day,  because  it  will  then  become  a 
debt ;  and  so,  where  there  is  a  debt  on  one  side,  and  a 
delivery  of  property,  with  directions  to  turn  it  into  mo- 
ney, on  the  other ;  for  the  credit  given  by  the  delivery  of 
the  property  will,  on  a  sale,  assume  the  character  of  a 
debt.(^)    But  where  there  is  a  mere  deposit  of  property, 
without  any  authority  to  convert  it  into  money,  as  a 
sale  is  not  contemplated  by  the  parties,  no  debt  can  ever 
arise  out  of  it,  and  therefore  it  is  not  a  credit  within  the 
intent  of  the  statute.(/i)      And  a  guarantee  which  is 
merely  a  contract  to   indemnify  upon  a  contingency, 
cannot  form  the  subject  of  a  mutual  credit,  because  it  is 
in  the  nature  of  a  claim  for  unliquidated  damages.(i) 
Neither  is  mutual  credit  constituted  by  the  deposit  of  a 
security  for  a  specific  purpose ;  as  if  a  person,  previously 
to  his  bankruptcy,  leave  a  bill  with  his  creditor,  under  a 
promise  by  the  latter  that  he  will  get  it  discounted,  or 
advance  the  money  on  it,  this  does  not  create  a 
mutual  credit.(^)    *The  legislature,  in  using  the  [  *334  ] 
term  mutual  credit^  meant  only  such  credit  and 

Ig)  Easum  v.  Cato,  5  B.  &  A.  861. 

(/i)  Rose  V.  Hart,  2  B.  Moore,  547.  S.  C.  8  Taunt.  499 ;  but  see 
Ex  parte  Deeze,  1  Atk.  228.     Ex  parte  Ockenden,  ibid.  235. 

(i)  Sampson  v.  Burton,  4  B.  Moore,  515.  S.  C.  2  Brod.  &,  Bingh. 
89.  See  Glennie  v.  Edmunds,  4  Taunt.  775.  Hancock  ».  Entwisle, 
3  T.  R.  435. 

{k)  Key  v.  Flint,  1  B.  Moore,  451.  S.  C.  8  Taunt.  21.  See  also 
Ex  parte  Flint,  1  Swanst.  38.  Buchanan  v.  Findlay,  9  B.  &  C.  738. 
These  cases  proceed  on  the  principle,  that  where  goods  or  bills  are  de- 
posited for  a  specific  object,  and  the  bailee  will  not  or  cannot  perform 
the  object,  he  is  bound  to  return  them,  the  property  of  the  bailor  not 
being  divested  or  transferred  until  the  object  is  performed. 


334  THE  CONSEQUENCES    OP    A 

debts  as  form  the  subject  of  an  account  or  debt  which 
may  be  set  against  some  other  account ;  and  where  this 
occurs,  mutual  credit  may  be  constituted,  though  the 
parties  did  not  mean  particularly  to  trust  each  other.(/) 
And  a  trust  between  two  parties  has  been  held  to  be  a 
mutual  credit.(m)  Therefore  where  three  persons  joined 
in  an  adventure  to  purchase  and  sell  some  pearls,  and 
one  only  was  to  advance  the  money  and  to  sell  them, 
but  the  profit  and  loss  were  to  be  divided  between  them 
in  thirds ;  one  of  the  parties  became  a  bankrupt,  and  the 
party  Avho  was  to  sell  the  pearls  was  allowed  to  set-off  a 
debt  due  to  him  from  the  bankrupt,  for  goods  sold  before 
the  bankruptcy,  in  an  action  commenced  against  him  by 
the  assignees,  against  the  third  of  the  adventure  due  to 
the  bankrupt,  although  the  pearls  were  not  sold,  nor  the 
produce  received  till  after  the  bankruptcy.(n)  Directors 
or  trustees  of  a  company  incorporated  by  charter,  or  act 
of  parliament,  cannot  set-off  a  debt  due  to  them  in  their 
individual  characters,  against  a  demand  made  upon  them 
by  the  assignees  of  a  bankrupt,  for  stock  due  to  the 
bankrupt  from  the  company  in  their  corporate  capa- 
city.(o)  But  where  there  was  an  express  by-law,  sub- 
jecting the  stock  of  each  member  to  any  debts  he  should 
owe  the  company,  and  the  banker  of  the  company  was 
indebted  to  them  for  a  balance  in  his  hands,  and  became 
a  bankrupt,  the  company  was  allowed  to  set-off  the  stock 
which  the  bankrupt  held  in  the  company  against  the  ba- 
lance due  to  them  upon  the  banking  account.(j9) 

In  the  construction  of  the  former  acts  relating  to  this 
subject,  it  was  held  as  a  general  rule,  that  no  debt  or 
credit  could  be  opposed  to  each  other  by  way  of  set-off, 
unless  each  debt  or  credit  accrued  or  was  given  either 
before  the  bankruptcy,(y)  or  upwards  of  two  calendar 

(/)  Hankey  v.  Smith,  3  T.  R.  507. 

(m)  Atkinson  v.  Elliott,  7  T.  R.  380. 

(n)  French  v.  Fenn,  Co.  B.  L.  (7th  ed.)  536. 

\o)  Melioruchi  v.  Royal  Exch.  Ass.  Company,  I  Eq.  C.  Abr.  9. 

(p)  Gibson  v.  Hudson's  Bay  Company,  1  Eq.  C.  Abr.  9.  S.  C.  1 
Stra.  645.     Child  v.  Same,  2  P.  Wms.  207. 

(5')  Ex  parte  Boyle,  Co.  B.  L.  542.  A  payment  after  the  bank- 
ruptcy upon  a  mere  liability  existing  before,  is  capable  of  set-off  within 
the  clause  as  to  mutual  credit.  Id.  ibid.  Ex  parte  Wagstaff,  13  Ves.  65. 


DISSOLUTION  BY  BANKRUPTCY.  334 

months   before  the  commission  issued,  founded  on  a 
prior  secret  and  unknown  act  of  bankruptcy  ;(r) 
*and  this  construction  must  also  be  referred  to  [  *335  ] 
the  general  rule  in  bankruptcy,  that  no  creditor 
whose  debt  did  not  arise  before  the  bankruptcy  can  ob- 
tain relief  under  a  commission.     Therefore,  if  goods  are 
originally  pledged  for  a  specific  sum,  and,  after  acts  of 
bankruptcy  committed  by  the  pawner,  the  pawnee  ad- 
vance a  further  sum  upon  them,  this  latter  advance  does 
not  constitute  a  case  of  mutual  credit,  and  the  pawnee 
acquires  no  hen  on  the  goods  as  against  the  assignees  of 
the  bankrupt,  in  respect  of  such  subsequent  advance.(s) 
But  if  the  ground  of  the  proposed  set-off  constituted  a 
credit  in  its  origin,  though  not  strictly  a  debt  before  the 
act  of  bankruptcy,  it  may,  as  we  have  seen,  be  set  off 
under  the  clause  of  mutual  credit.(0     Doubts  have  been 
entertained,  whether  in  an  action  by  the  assignees  under 
a  joint  commission  for  money  paid  between  the  times  of 
the  bankruptcy  of  the  two  partners,  there  can  be  a  set-off 
of  a  debt  due  before  the  bankruptcy  of  either  of  the 
partners.(M) 

The  right  of  set-off  in  bankruptcy  is,  in  general,  gov- 
erned by  the  same  principles  as  prevail  at  law,  and  there- 
fore a  strict  mutuality  is  necessary ;  and,  as  the  statute 
relating  to  mutual  credit  was  intended  to  give  a  certain 
extension  to  the  statutes  of  set-off,  it  must,  as  it  introdu- 
ces new  remedies,  be  construed  strictly,  and  cannot  be 
applied  to  cases  not  within  its  letter.  Thus,  where  A 
had  a  joint  demand  against  B  and  C,  who  were  also 
creditors  of  A,  B  having,  by  deed,  made  himself  sepa- 
rately liable  to  A  on  account  of  the  original  joint  de- 
mand, was  holden  not  entitled  to  set  off  the  joint  demand 
due  to  himself  and  C.(v)  And  in  a  recent  case,(^^))  in 
which  two  out  of  three  partners  became  bankrupts,  and 
their  assignees,  with  the  solvent  partner,  brought  an  ac- 

(r)  Southwood  v.  Taylor,  1  B.  &;  A.  471.  See  the  6  Geo.  4.  c.  16. 
s.  81. 

(s)   Birdwood  v.  Hart,  5  Price,  593. 

\t)    CuUen's  B.  L.  199.     Ouchterlony  v.  Easterby,  4  Taunt.  888. 

(w)  Smith  V.  Goddard,  3  Bos.  &  Pul.  465. 

(u)  Ex  parte  Ross,  Buck,  125. 

{w)  Staniforth  v.  Fellows,  1  Marsh.  184. 


335  THE  CONSEqUENCES  OF  A 

tion  against  a  broker,  for  the  proceeds  of  bills  belonging 
to  the  firm  in  his  hands ;  it  was  held,  that  the  broker  was 
not  entitled  to  set  the  amount  of  the  bills  against  a  debt 
due  to  him  from  the  firm.  Facts  of  such  a  description 
cannot  be  said  to  constitute  a  case  of  mutual  credit, 
either  within  the  letter  or  the  meaning  of  the  statute ; 
not  within  its  letter,  because  the  statute  only  relates  to 
mutual  cjedits  between  bankrupts  and  other  persons,  and 

not  to  credit  existing  between  bankrupts  to- 
[  *336  ]  gether  with  a  solvent  person  *on  the  one  side, 

and  a  third  person  on  the  other ;  nor  within  its 
meaning,  because,  notwithstanding  the  bankruptcy  of 
some  of  the  partners,  the  person  claiming  the  right  of 
set-oflf  has  still  a  solvent  partner  to  whom  he  may  resort 
for  the  recovery  of  his  debt.  Where  bills  were  drawn 
by  one  partner,  and  accepted  by  the  defendant,  and  dis- 
counted by  the  firm  for  his  convenience,  having  money 
in  their  hands  of  his  at  the  time,  it  was  held  that  between 
the  parties  it  constituted  a  mutual  credit,  and  the  part- 
ners could  not,  by  paying  away  the  bills  which  were  af- 
terwards returned  to  them,  put  an  end  to  that  mutual 
credit  so  as  to  deprive  the  defendant  of  his  right  to  set- 
off any  debt  due  from  the  firm  to  him  against  the  sum 
claimed  by  them,  or  their  assignees,  from  him,  as  such 
acceptor.(.2:) 

We  will  now  inquire  in  what  cases  a  set-qf  is  allowed 
in  equity.  Equitable  set-off  is  where,  by  reason  of  the 
nature  of  the  cross  demand,  there  can  be  no  set-off  at 
law  ;(y)  and  there  is  this  difference  between  set-off  in 
equity  and  set-off  at  law,  that  in  equity  it  prevailed  long 
before  the  statutes  ;(z)  (1)  and  these  being  enabling  sta- 
tutes, they  do  not  defeat  or  control  the  original  jurisdic- 
tion of  courts  of  equity  in  cases  where  there  would  have 
been  an  equitable  set-off  previous  to  the  statutes.  The 
Lord  Chancellor,  therefore,  sitting  in  bankruptcy,  exer- 

(x)  BoUand  v.  Nash,  2  B.  &  Cr.  105.     S.  C.  2  M.  &  Ry.  189. 

(y)  Whyte  v.  O'Brien,  1  Sim.  &  Stu.  551. 

{zj  Per  Lord  Eldon,  Ex  parte  Blagden,  19  Ves.  467. 


(1)  See  Duncan-^.  Lyon,  3  Johns.  Cha.  Rep.  358,  359. 


DISSCKLUTIOIV  BYWBANKRUPTCY.  336 

cising  an  equitable,  as  well  as  a  legal  jurisdiction,  will 
extend  that  jurisdiction  to  cases  of  set-off  that  are  not 
only  not  within  the  immediate  operation  of  the  statutes,(a) 
but  even  to  cases  where  an  action  would  not  Jie  at  com- 
mon law,  and  where  the  Court  of  Chancery  would  not, 
upon  a  bill,  decree  an  account.(6)  Under  particular  cir- 
cumstances, where  great  injustice  would  otherwise  pre- 
vail, and  there  is  a  natural  equity  going  beyond  the  statute, 
the  Lord  Chancellor  will,  where  a  bankrupt  is  a  creditor 
of  a  principal  and  surety,  and  a  debtor  to  the  principal, 
restrain  the  assignees  from  proceeding  at  law,  either 
against  the  principal  and  surety,  or  against  the  surety  se- 
parately ;  and  will  order  the  joint  and  separate  debts  to  be 
set-off.  Thus,  where  Ann  Stephens  directed  her  bankers 
to  sell  exchequer  annuities,  and  to  invest  the  pro- 
duce *in  navy  annuities,  and  the  bankers  inform-  [  *337  ] 
ed  her  they  had  followed  her  directions,  and  an 
entry  was  made  in  her  banking  book  to  that  effect  in 
October  1785,  and  credit  was  given  to  her  regularly  for 
the  dividends ;  afterwards  in  the  year  1796,  her  brother, 
having  a  separate  account  with  the  bankers,  proposed 
to  borrow  of  them  1000/.  upon  the  security  of  the  joint 
and  several  note  of  himself  and  his  sister,  which  was 
agreed  to,  and  the  note  given  accordingly.  The  bankers 
became  bankrupts ;  and  it  then  appeared  that  they  had 
not  purchased  the  navy  annuities,  and  that  the  docu- 
ments which  they  had  exhibited  to  Ann  Stephens,  in 
proof  of  the  purchase,  were  false.  The  assignees  of 
the  bankrupts  brought  an  action  against  the  brother 
alone  upon  the  note ;  and  the  brother  and  sister  peti- 
tioned to  be  at  liberty  to  set  off  what  was  due  upon  the 
note  against  the  debt  due  to  Ann  Stephens  from  the 
bankrupts ;  and  Lord  Eldon,  upon  the  ground  of  the 
fraud  practised  upon  An7i  Stephens,  restrained  the  as- 
signees from  proceeding  at  law,  and  ordered  the  amount 
of  the  note  to  be  set  ofT  against  the  demand  Ann  Ste- 
phens had  upon  the  bankrupts,  on  account  of  the  sum 

(a)  Ex  parte  Stephens,  11  Ves.  27.     Ex  parte  Hanson,  12  Ves. 
348.     James  v.  Kynnier,  5  Ves.  108. 
(6)  Cullen's  B.  L.  196. 


337  THE   CONSEQUENCES   OP   A 

charged  as  invested  in  the  purchase  of  navy  annuities.(c) 
But,  generally  speaking,  the  rule  of  law,  that  joint  and 
separate  debts  cannot  be  set  against  each  other,  prevails 
in  equity.  Therefore,  a  debtor  to  one  partner  individu- 
ally is  not  entitled  to  have  the  debt  due  from  him  de- 
ducted from  or  set  against  a  demand  which  he  has  upon 
the  firm,  whether  the  debt  due  from  him,  when  paid,  is 
to  be  applied  in  satisfaction  of  the  claims  of  joint  or  of 
separate  creditors.  If  the  money  be  wanted  for  pay- 
ment of  separate  creditors,  he  clearly  has  not  a  right  to 
retain ;  and  he  is  equally  destitute  of  such  a  right,  if  it 
be  intended  to  apply  the  money  in  discharge  of  the  de- 
mands of  joint  creditors.  In  the  latter  case  he  is  not 
called  upon  to  pay  his  debt,  in  the  same  character  in 
which  he  would  receive,  as  a  joint  creditor.  His  right 
is  not  co-extensive  with  his  obligation.  His  obligation 
is  to  pay  the  whole :  his  right  is  to  receive  only  a  part, 

namely,  his  proportionate  dividend  with  the 
[  *338  ]  other  joint  creditors.(<Z)     There  are,  *however, 

cases  which  militate  against  the  general  princi- 
ple, and  in  which  separate  have  been  allowed  to  be  set 
against  joint  debts.  In  a  case  before  Lord  Hardwicke,(e) 
the  petitioner,  who  was  a  creditor  under  a  separate  com- 
mission against  A,  and  a  debtor  under  a  joint  commis- 
sion against  A  and  B,  prayed  that  an  action  brought  by 
the  assignees  for  the  debt  he  owed  to  the  joint  commis- 
sion might  be  stayed,  and  that  his  demand  upon  the 
separate  estate  might  be  allowed  as  a  set-off  against  the 
debt  he  owed  to  the  joint  estate :  the  Lord  Chancellor 
doubted  whether  the  debt  could  be  set  off  under  the 
statute  relating  to  mutual  debts,  because  different  per- 
sons were  concerned  in  one  debt  and  in  the  other,  and 
in  distinct  rights ;  but  as  the  petitioner's  case  appeared 

(c)  Ex  parte  Stephens,  1 1  Ves.  24.  On  the  above  case  being  sub- 
sequently quoted  as  an  authority,  Lord  Eldon  observed,  "  There  are 
certain  difficulties  in  the  decision  of  Ex  parte  Stephens,  which  per- 
haps  the  strong  circumstances  of  fraud  in  that  case  could  alone  have 
obviated."     Ex  parte  Blagden,  2  Rose,  251.     S.  C.  19  Ves.  467. 

(rf)  Addis  V.  Knight,  2  Meriv.  117.  And  see  Stephenson  v.  Chis- 
well,  3  Ves.  566.  Lanesborough  v.  Jones,  1  P.  Wms.  325.  Bac. 
Abr.  tit.  Bankrupt  (G). 

(e)  Ex  parte  Edwards,  1  Atk.  100. 


DISSOLUTION    BY    BANKRUPTCY.  338 

to  be  a  hard  one,  he  referred  it  to  the  commissioners  to 
see  how  much  the  petitioner  owed  to  the  joint  estate, 
and  how  much  was  owing  to  him  from  the  separate  es- 
tate, and  directed  them  to  certify  the  same  to  him ;  and 
he  stayed  the  action,  and  reserved  further  consideration 
until  the  commissioners  had  certified.     Nothing  further 
appears  from  the  report  of  this  case,  which,  therefore, 
can  hardly  be  considered  as  a  direct  and  positive  adju- 
dication of  the  question  ;  but  in  a  subsequent  case(/) 
Lord  Rosslyn  seems  to  have  treated  it  as  an  authority, 
observing  that  there  could  be  no  purpose  in  directing 
the  account,  but  with  a  view  to  allow  it.     In  that  case 
a  separate  commission  was  taken  out  against  Shepherd^ 
one  partner,  and  the  solvent  partner,  Williams,  paid  the 
joint  debts ;  and  a  debtor  to  the  partnership,  being  also 
a  separate  creditor  of  the  bankrupt,  petitioned  to  set  oft* 
his  separate  debt  against  the  bankrupt's  share  of  the 
joint  debt,  and  to  prove  for  the  residue  of  his  separate 
debt.     The  Lord  Chancellor  granted  the  petition,  and 
said,  that  "in  equity  it  would  be  very  hard,  where  it 
appeared  that  all  the  joint  debts  were  paid,  and  the  other 
partner  was  satisfied,  and  there  was  a  surplus  in  which 
he  was  interested  in  one  moiety,  and  the  indebted  part- 
ner in  the  other,  if  to  the  extent  of  that  moiety  the  cre- 
ditor of  that  partner  could  not  set  off."  But  the  authority 
of  this  latter  decision  has  been   considerably   shaken: 
Lord  Eldon  in  a  late  case(^)  having  expressed  his  dis- 
approbation of  it.     There,  under  a  separate  commission 
against  one  partner,  a  debt  was  proved  by  a  creditor 
who  was  indebted  to  the  partnership  in  a  larger  amount, 
and  an  action  was  brought  for  the  dividend. 
*A  petition  was  presented  to  stay  the  action,  [  *339  ] 
and  to  obtain  relief  by  a  set-off*.     Lord  Eldon 
observed,  "  In  the  case  Ex  parte  Quinten  the  partnership 
debts  were  all  paid.     I  do  not  quite  understand  it :  but 
if  there  are  debts  which  cannot  be  set  oft"  at  law,  can  it 
be  said  that  all  the  aflfairs  of  the  bankruptcy  are  to  be 
suspended  until  all  the  accounts  are  cleared,  in  order  to 
see  what  rights  of  set-oft*  there  may  be  in  the  result  ? 

(/)  Ex  parte  Quinten,  3  Ves.  248. 
\g)  Ex  parte  Twogood,  11  Ves.  517. 
56 


339 


THE    CONSEQUENCES    OF    A 


That  should  have  been  considered  before  that  case  was 
determined.  The  consequence  will  be,  that  where  there 
are  joint  and  separate  debts  which  cannot  be  set  off 
against  each  other  at  law,  in  every  bankruptcy  the  pro- 
ceedings must  be  suspended  till  the  accounts  are  taken, 
and  it  is  seen  what  the  joint  estate  will  pay,  and  what 
the  separate  will  pay.  Another  difficulty,  in  that  case, 
which  I  do  not  understand,  is  this :  the  commission  was 
against  Shepherd  alone.  Williams  paid  all  the  partner- 
ship debts.  Then,  if  demands  were  due  to  both,  those 
demands  would  be  recovered  in  their  names;  and  then, 
if  upon  the  account  between  them  there  was  a  clear  sur- 
plus to  Shepherd,  that  would  be  part  of  his  general  sepa- 
rate estate,  to  be  handed  over  as  such  to  his  assignees, 
in  trust  for  all  his  separate  creditors ;  and  would  not  be 
left  in  the  pocket  of  one  creditor,  who  paid  that  joint 
debt,  but  would  be  divisible,  as  part  of  the  separate  es- 
tate, among  all  the  separate  creditors.  The  circum- 
stance, that  there  was  a  great  number  of  other  separate 
creditors,  Avas  not  in  the  least  attended  to  in  that  case. 
If  it  could  be  made  out  that  all  the  separate  creditors 
were  paid  also,  there  would  be  a  clear  equity,  not  upon 
the  ground  of  set-off,  but  an  equity,  that,  from  that 
moment,  Shepherd''s  share  would  be  held  for  that  indi- 
vidual creditor.  But  if  the  assianees,  who  had  a  riffht 
to  take  the  account,  were  to  take  that,  then  it  would  be 
in  trust,  not  for  that  individual  creditor,  but  for  all  the 
separate  creditors ;  whose  equity  is,  that  all  the  joint 
debts  being  paid,  if  there  is  a  surplus,  that  shall  be  di- 
vided, not  according  to  the  individual  rights  of  the  cre- 
ditors, but  according  to  the  rights  the  partners  have  as 
between  themselves,  though  that  surplus  may  be  consti- 
tuted by  the  specific  money  of  the  joint  debtor  Avho  paid 
to  the  joint  estate.  Had  not  Williams,  paying  the  part- 
nership debts,  a  right,  by  virtue  of  the  partnership  credits, 
to  get  those  credits  into  his  own  hands,  to  set  himself 
right  ?  I  do  not  deny  that  there  is  a  good  deal  of  natural 
equity  in  the  proposition  upon  which  this  petition  stands ; 

but,  pursuing  it  through  all  its  consequences,  it 
[  *340  ]  would  so  disturb  *all  the  habitual  arrangement 

in  bankruptcy,  that  I  dare  not  do  it."  So,  where 


DISSOLUTION    BY    BANKRUPTCY.  340 

part  owners  of  a  ship  were  jointly  indebted  to  the  mas- 
ter, who  became  a  bankrupt,  and  the  bankrupt  was 
indebted  to  several  of  the  part  owners,  distinct  from  the 
account  relating  to  the  ship,  Lord  Eldon  held,  that  the 
latter  could  not  set  off  their  separate  debts  against  the 
respective  proportions  of  their  debt  due  to  the  bankrupt's 
estate  jointly  with  the  other  part  owners.(A)  But  where 
a  joint  bond  was  given  to  a  banker  by  a  principal  and 
surety,  and  the  principal  was  a  creditor  of  the  banker  on 
his  separate  account  to  an  amount  exceeding  the  bond, 
and  the  banker  becoming  bankrupt,  his  assignees  brought 
an  action  upon  the  bond ;  the  principal  presented  a  peti- 
tion, praying  that  he  might  be  allowed  to  set  off  and 
prove  the  balance.  Lord  Erskine  made  the  order,  upon 
the  ground  that  the  statute  of  set-oft'  was  passed  only 
to  prevent  circuity.  That  if  the  bankruptcy  had  not 
occurred,  a  plea  of  set-oft'  could  not  have  been  put  in 
to  an  action  by  the  banker ;  but  the  moment  he  obtained 
judgment,  the  principal  in  the  bond  would  have  brought 
his  action  against  the  banker  for  the  separate  debt ;  and 
if  the  surety  had  paid  the  joint  debt,  would  have  repaid 
him  by  the  money  recovered  in  that  action.  That  as- 
signees take  subject  to  all  equities  attaching  upon  the 
bankrupt,  and  as  the  condition  of  the  bankrupt,  if  he  had 
remained  solvent,  would  have  been  as  represented,  that 
must  be  the  condition  of  the  assignecs.(i)  And  under 
particular  circumstances,  as  where  there  is  a  clear  series 
of  transactions  in  w^iich  joint  credit  has  been  given,  a 
joint  debt  may,  in  equity,  be  set  against  a  separate  de- 
mand.(^)  (1) 

Ih)  Ex  parte  Christie,  10  Ves.  105. 

(i)   Ex  parte  Hanson,  12  Ves.  346.     S.  C.   18  Ves.  232,   and  1 
Rose,  156. 

{k)  Vulliamy  v.  Noble,  3  Meriv.  618. 


(1)  Although  a  person  having  a  claim  against  a  mercantile  company, 
cannot  set  off  such  claim  against  a  debt  due  from  himself  to  one  of  the 
partners  ;  yet  it  is  competent  for  him  to  charge  that  partner,  in  equity, 
(in  extinguishment  of  the  debt)  for  so  much  of  the  surplus  of  the 
partnership  property  as  may  be  due  to  such  partner  on  a  settlement  of 
the  partnership  accounts  ;  for  the  purpose  of  which  settlement,  and  also 


340  THE  CONSEQUENCES  OP  A 

Although  the  Court  of  Chancery  is  the  grand  forum 
for  the  determination  of  questions  arising  in  bankruptcy, 
yet  they  are  not  unfrequently  agitated  in  the  courts  of 
common  law ;  and  it  will  here  be  proper  briefly  to  ex- 
plain in  what  cases  assignees  must,  either  alone,  or 
jointly  with  a  solvent  partner,  assert  the  rights  of  the 
firm  on  the  behalf  of  creditors,  and  likewise  the  mode 
and  manner  in  which  they  must  sue.  Where  all  the  part- 
ners are  adjudged  bankrupts,  and  an  assignment  of  their 

effects  is  regularly  made  by  the  commissioners 
[  *341  ]  to  certain  persons  as  *assignees,  every  right  of 

action  possessed  by  the  bankrupts  vests  in  the 
assignees,  by  relation  to  the  time  when  the  acts  of  bank- 
ruptcy were  committed.(/)  And  the  assignees,  not  being 
restricted  by  the  legislature  from  bringing  actions  at  law 
without  the  consent  of  the  creditors,  have  the  same  re- 
medies to  recover  the  joint  property  with  which  the 
bankrupts  themselves  were  invested,  and  where  there  is 
a  choice  of  remedies  may  adopt  that  which,  in  their  dis- 
cretion, they  may  think  proper.(m)  But  every  species 
of  present  interest  being,  by  the  assignment,  divested 
out  of  the  bankrupts  and  vested  in  their  assignees,  the 
latter  can  alone  enforce  any  right  or  claim  which  may 
arise  or  result  in  favour  of  the  estate  of  the  bankrupts ; 
and  if  all  or  one  of  the  bankrupt  partners  join  in  an  ac- 
tion with  their  assignees,  as  they  or  he  cannot  sue,  and 
therefore  ought  not  to  be  introduced  on  the  record  as 
plaintiffs,  the  defendant  may  plead  the  bankruptcy  in 
ha.r.(n)  And  where  one  only  of  the  partners  becomes 
bankrupt,  an  action  founded  on  a  joint  contract,  or  to 
recover  payment  of  a  joint  debt,  must  be  brought  by  the 
solvent  partner  jointly  with  the  assignees  of  his  copart- 

(l)  See  Ex  parte  Birkett,  2  Rose,  71. 

{m)  2  Black.  Com.  485.  Hussey  v.  Fiddall,  12  Mod.  324.  S.  C. 
3  Salk.  59. 

(n)  Eckhardt  v.  Wilson,  8  T.  R.  140.  See  also  Kinnear  v.  Tar- 
rant, 15  East,  622. 


that  of  ascertaining  and  adjusting  his  own  claim  against  the  company, 
all  the  partners  shall  be  made  defendants  to  his  bill.  Dunbar  v.  Buck 
et  al.  6  Munf.  34. 


DISSOLUTION  BY    BANKRUPTCY.  341 

ner,  who  succeed  to  the  state-  and  condition  of  the  bank- 
rupt.(o)     Even  where  two  partners  have  stopped  pay- 
ment, and  a  commission  of  bankrupt  is  taken  out  against 
one  of  them  only,  a  debtor  to  the  firm,  who  knows  of 
the  stoppage,  cannot,  in  an  action  by  the  partner  who 
has  not  been  declared  a  bankrupt  and  the  assignees  of 
the  bankrupt  partner,  refuse  to  pay  money  due  to  them, 
on  the  ground  that  the  former  may  have  committed  an 
act  of  bankruptcy;   because,   although  there  may  be 
peril  in  paying  a  man  who  is  known  to  have  stopped 
payment,  yet  that  affords  no  defence  to  an  action  for  a 
debt  justly  due  to  him.(^9)     Formerly,  it  was  necessary 
for  the  assignees  of  the  bankrupt  partner  to  have  ob- 
tained the  consent  of  the  solvent  partner,  before  an  ac- 
tion could  have  been  instituted  in  their  joint  names  to 
recover  a  debt  due  to  the  joint  estate ;  for,  had  the  action 
been  instituted  without  his  express  concurrence,  he  might, 
by  a  release,  have  defeated  any  claim  which  the  assig- 
nees might  have  had  against  a  joint  debtor ;  and 
courts  of  law,  as  *we  have  seen,(<7)  would  not  [  *342  ] 
have  controlled  his  legal  power  to  release  the 
action,  unless  a  very  strong  case  of  fraud  were  made 
out.     But  this  legal  capacity  of  the  solvent  partner  to 
release  a  joint  claim  is  now  restrained,  and  his  actual 
consent  to  the  instituting  an  action  in  his  name,  jointly 
with  that  of  the  assignees,  is  no  longer  requisite.     By  a 
late  statute(r)  it  is  enacted,  "  that  in  any  commission 
against  any  one  or  more  member  or  members  of  a  firm, 
the  Lord  Chancellor  may,  upon  petition,  authorise  the 
assignees  to  commence  or  prosecute  any  action  at  law 
or  suit  in  equity,  in  the  names  of  such  assignees  and  of 
the  remaining  partner  or  partners,  against  any  debtor  of 
the  partnership,  and  may  obtain  such  judgment,  decree, 
or  order  therein,  as  if  such  action  or  suit  had  been  in- 
stituted with  the  consent  of  such  partner  or  partners ; 


(o)  Thomason  v.  Frere,  10  East,  418.  Graham  v.  Robertson,  2  T. 
R.  282. 

(/;)  Prickett  v.  Down,  3  Carapb.  131.  S.  P.  Franklin  v.  Lord 
Brownlovv,  14  Ves.  557.  See  also  Fuller  v.  Gibson,  2  Cox,  24.  6 
Geo.  4.  c,  16.  s.  84. 

{q)    See  ante,  p.  61.  (r)  6  Geo.  4.  c.  16.  s.  89. 


342  THE    CONSEq,UENCES   OF    A 

and  if  such  partner  or  partners  shall  execute  any  release 
of  the  debt  or  demand  for  which  such  action  or  suit  is 
instituted,  such  release  shall  be  void,  provided  that  every 
snch  partner,  if  no  benefit  is  claimed  by  him  by  virtue 
of  the  said  proceedings,  shall  be  indemnified  against  the 
payment  of  any  costs  in  respect  of  such  action  or  suit ; 
and  that  it  shall  be  lawful  for  the  Lord  Chancellor,  upon 
the  petition  of  such  partner,  to  direct  that  he  may  re- 
ceive so  much  of  the  proceeds  of  such  action  or  suit  as 
the  Lord  Chancellor  shall  think  fit." 

Where  a  joint  commission  issues  against  all  the  part- 
ners, and  assignees  are  appointed  under  it,  the  assignees, 
in  any  action  instituted  by  them  in  relation  to  the  estate 
of  the  bankrupts,  must  all  join,  or  the  nonjoinder  will 
furnish  a  ground  of  nonsuit.(s)  And  a  joint  commission 
of  bankruptcy,  having  neither  a  joint  or  separate  opera- 
tion, according  as  it  relates  to  the  joint  estate  of  the  bank- 
rupts collectively,  or  the  separate  estate  of  each  bankrupt 
individually,  it  follows  that  the  assignees  under  such  a 
commission  may  recover  either  a  joint  debt  due  to  the 
firm,  or  a  separate  debt  due  to  a  single  partner.  In  an 
action  which  has  for  its  object  the  enforcing  payment  of 
a  joint  debt,  .the  assignees  must  in  their  declaration  dis- 
close a  joint  title,  and  must  show  that  they  legally  repre- 
sent all  and  each  of  the  parties  to  whom,  before  the  bank- 
ruptcy, the  debt  or  duty  was  due.     And  they  must  make 

out  a  title  as  assignees  of  all  the  bankrupts  exist- 
[  *343  ]  ing  at  *the  time  of  the  bankruptcy  of  each ;  for  if 

the  right  of  the  defendant  to  the  subject  matter  in 
dispute  was  perfect  before  the  completion  of  their  title 
as  assignees,  they  cannot  recover.  Thus,  where  judg- 
ment was  entered  up  on  a  warrant  of  attorney  given  by 
two  parties,  and  a  Jieri  facias  isued,  returnable  on  the 
second  of  May,  On  the  first  of  that  month  the  sheriflf's 
officer  received  from  the  defendants  the  money  directed 
to  be  levied.  On  the  second  of  May  one  of  them  com- 
mitted an  act  of  bankruptcy,  and  the  other  on  the  fifth. 
On  the  eleventh  a  commission  of  bankrupt  issued,  and  on 

(s)  Snellgrove  v.  Hunt,  1  Chit.  Rep.  71.  S.  C.  2  Stark.  N.  P. 
C.  424.  Aldritt  v.  Kittridge,  6  B.  Moore,  569.  In  equity  the  rule  is 
in  some  eases  relaxed.     See  Wilkins  v.  Fry,  1  Meriv.  244. 


DISSOLUTION    BY    BANKRUPTCY.  343 

the  nineteenth  the  sheriff  paid  over  the  money  to  the 
execution  creditor ;  in  an  action  by  the  assignees,  it  was 
held  that  he  was  entitled  to  retain  it,  inasmuch  as  he  was 
not  to  be  considered  a  creditor  having  security  at  the 
time  of  the  bankruptcy,  within  the  meaning  of  the  pro- 
viso in  the  6  Geo.  4.  c.  16.  s.  108,  since  after  payment  of 
the  money  to  the  sheriff,  the  original  debt  was  extin- 
guished, and  he  no  longer  retained  his  character  of  a 
creditor  of  the  bankrupts.(^)     But  the  assignees  under  a 
joint  commission  may  in  the  same  action  include  debts 
due  to  the  partners  jointly,  and  those  which  are  due  to 
each  separately ;  for  the  whole  property  being  transferred 
to  them  under  the  commission,  they  are  equally  the  as- 
signees of  each,  as  of  all.     Therefore,  a  declaration  by 
the  assignees  of  two  partners,   bankrupts,    containing 
counts  on  debts  due  to  them  jointly,  and  counts  on  debts 
due  to  them  separately,  was  held  good  on  demurrer.(w) 
Where,  however,  assignees  under  a  joint  commission  sue 
on  a  separate  contract,  they  must  describe  themselves  as 
the  assignees  of  the  single  partner  with  whom  the  con- 
tract was  made,  without  noticing  the  others.(v)    There- 
fore where  A,  who  was  in  partnership  with  B,  committed 
an  act  of  bankruptcy,  and   afterwards,  but  before  the 
.  bankruptcy  of  B,  the  sheriff  seized  goods  which  had  be- 
longed to  A  and  B,  under  an  execution  against  them ; 
it  was  held  that  the  assignees  of  A  and  B  under  a 
joint  commission  could  not,  suing  as  such,  recover  A's 
share  of  the  property  therein.(tf))    But  where  in 
an  action  of  trover  by  the  assignee  of  *bahk-  [  *344  ] 
rupt  partners,  the  declaration  consisted  of  one 
count  only,  in  which  the  possession  was  stated  to  be  in 
the  partners,  and  it  appeared  in  evidence,  that  the  greater 
part  of  the  goods  in  question  belonged  to  one  of  the 
partners  only,  before  the  commencement  of  the  partner- 
ship, and  had  never  been  brought  into  the  partnership 

U)  Morland  v.  PeHatt,  8  B.  &  C.  722.  And  see  Notley  v.  Buck, 
ibid.  160.     Wymer  v.  Kemble,  6  B.  &  C.  479. 

(^<)  Graham  v.  Mulcaster,  4  Bingh.  115, 

\v)  Stonehouse  v.  De  Silva,  3  Campb.  399.  Harvey  v.  Morp^an,  2 
Stark.  N.  P.  C,  17.  S.  P.  Per  Park,  J.,  Hoggu.  Bridges,  8  Taunt. 
200. 

{iv)  Hogg  V.  Bridges,  8  Taunt.  200.     S.  C.  2  B.  Moore,  122. 


344  THE  CONSEQUENCES  OF  A 

fund,  but  it  was  proved  that  the  residue  of  the  goods  was 
part  of  the  joint  estate,  Lord  Kenyan  ruled  that  the 
plaintiff,  under  that  declaration,  was  entitled  to  recover 
the  value  of  such  goods  only  as  had  been  proved  to  have 
belonged  to  both  the  partners  as  partners ;  although  had 
there  been  a  count  in  the  declaration  stating  the  posses- 
sion in  the  assignee,  the  whole  might  have  been  re- 
covered, inasmuch  as  the  commission  was  joint,  and  the 
assignment  under  it  passed  both  separate  and  joint 
effects. (.r)  If  there  has  been  any  promise  to  the  as- 
signees, or  cause  of  action  since  the  bankruptcy,  a  count 
adapted  to  such  demand  should  be  inserted  in  the  decla- 
ration ;  and  where  two  partners  became  bankrupts,  and 
the  defendant,  between  the  two  acts  of  bankruptcy,  re- 
ceived money  jointly  belonging  to  them  from  their  clerk, 
and  the  assignees  of  the  two  partners,  in  their  action  to 
recover  it,  declared  only  for  money  had  and  received  to 
the  use  of  the  two  partners  before  they  became  bank- 
rupts, and  in  another  count  to  the  use  of  the  plaintiffs  as 
assignees,  it  was  decided  that  the  plaintiffs  could  not  re- 
cover, because  they  should  have  declared  in  one  count 
for  money  had  and  received  to  their  use  as  assignees  of 
the  partner  who  had  committed  an  act  of  bankruptcy  at 
the  time  the  money  was  paid.(y) 

Where  a  joint  commission  has  not  been  awarded 
against  a  bankrupt  firm,  but  separate  commissions  have 
alone  issued  against  each  of  its  members,  as  the  joint 
estate  and  consequent  right  of  sustaining  an  action  in 
respect  of  it  is  centered  in  the  assignees  of  all  the  bank- 
rupts jointly,  it  follows  that  they  must  all  join  in  an 
action  to  recover  a  joint  demand. (^)  In  such  a  case  it 
is  only  necessary,  that  the  assignees  who  appear  as  plain- 
tiffs on  the  record  should  represent  all  the  persons  inter- 
ested and  should  unite  in  themselves  all  the  interest  of 
those  parties.  Therefore,  where  there  was  a  firm 
[  *345  ]  consisting  of  three  partners,  *two  of  whom  being 

(x)  Cock  V.  Tuntio,  cited  2Selw.  N.  P.  1316. 

ly)  Smith  v,  Goddard,  3  Bos.  &  Pul.  465.  It  may  be  doubtful 
whether  any  form  of  declaration  would  entitle  the  assignees  to  recover 
in  such  a  case.     See  ante,  p.  307. 

{z)  Hancock  v.  Haywood,  3  'J'.  R.  R.  433. 


DISSOLUTION   BY    BANKRUPTCY.  345 

engaged  in  partnership  with  two  others,  the  four  be- 
came bankrupts,  and  a  joint  commission  being  issued 
against  them,  a  separate  commission  was  afterwards 
awarded  ao-ainst  the  third  partner  in  the  firm  of  the  three, 
under  both  which  commissions  the  plaintiffs  were  elected 
assignees,  it  was  held  that,  inasmuch  as  the  entire  rights 
of  the  three  vested  in  them,  they  might  declare  as  their 
assignees.(a)  (1)  And  even  where  the  plaintiffs  sued  and 
declared  as  assignees  of  A  and  B,  and  also  as  assignees 
of  C,  for  a  joint  demand  due  to  all  the  bankrupts,  the  de- 
claration was  holden  good  on  a  motion  in  arrest  of  judg- 
ment.(6)  Where  separate  commissions  issue  against  the 
several  partners,  and  different  persons  are  appointed  as- 
signees under  them,  although  they  must  all  join  in  an 
action  to  recover  a  joint  demand,  yet  they  cannot  sue  as 
joint  assignees,  but  must  state  their  several  and  respec- 
tive interests  in  the  declaration.(c)  And  the  assignees 
of  A,  a  bankrupt,  and  also  of  B,  a  bankrupt,  under  sepa- 
rate commissions,  cannot  recover  in  the  same  action  a 
joint  debt  due  from  the  defendant  to  both  the  bankrupts, 
and  also  separate  debts  due  to  each,  because  the  bank- 
rupts themselves  could  not  have  joined  in  bringing  one 
action  for  their  separate  debts,  and  therefore  the  joinder 
of  the  two  causes  of  action  by  their  assignees  is  impro- 
per ;  but  if  in  such  an  action,  the  jury  have  assessed  the 
damages  severally  on  the  separate  counts,  the  court  will 
arrest  the  judgment  on  those  counts  only  which  demand 
the  debts  due  to  each  bankrupt  separately .(</)  The  as- 
signees of  one  of  the  partners  cannot  maintain  trover 
against  the  executor  of  the  solvent  partner,  for  goods  de- 

(a)  Scott  V.  Franklin,  15  East,  428. 

(6)  Slreatfield  v.  Halliday,  3  T.  R.  779. 

((•)  Ray  V.  Davies,  2  B.  Moore,  3.  Probably,  on  motion  in  arrest 
of  judgment  after  verdict,  such  an  omission  would  have  been  holden 
good,  as,  according  to  Slreatfield  v.  Halliday,  there  would  have  been 
nothing  to  show  that  the  assignees  did  not  claim  under  a  joint  commis- 
sion against  all  the  partners. 

{(I)  Hancock  v.  Haywood,  3  T.  R.  433,  recognised  by  Lord  Ellen- 
borough  in  De  Cosson  v.  Vaughan,  10  East,  65.  See  also  Richardson 
V.  Griffin,  5  Mau,  &  Selw.  297. 


(1)  Graham  et  al.  v.  Mulcaster,  4  Bingh.  115. 
57 


345  *  THE    CONSEqUENCES    OF    A 

livered  to  him  during  the  life  of  the  solvent  partner,  al- 
though after  the  act  of  bankruptcy  upon  which  the 
commission  issued,  because  the  representatives  of  the 
solvent  partner  and  the  assignees  of  the  bankrupt  are 
tenants  in  common.(e)  (1)     And,  for  the  same  reason, 

where  joint  effects  are  delivered  by  the  solvent 
[  *346  ]  partner  to  *a  joint  creditor,  the  assignees  of  the 

bankrupt  cannot,  after  the  death  of  the  former 
partner,  sustain  an  action  of  trover  against  such  creditor, 
notwithstanding  the  delivery  be  over-reached  by  the  act 
of  bankruptcy. (y) 

The  Lord  Chancellor  exercises  a  discretionary  power 
to  supersede  a  commission  of  hankriiptcy  in  the  case  of 
partners  as  well  as  others,  if  from  the  circumstances  of 
the  case  he  shall  deem  it  necessary  or  proper.  There- 
fore, if  the  petitioning  creditor's  debt  be  insufficient  ;(^) 
or  if  he  be  an  infant,  and  therefore  incapable  of  giving  the 
bond  to  the  great  seal  ;(A)  or  if  there  is  not  sufficient 
evidence  of  the  trading,  or  of  the  act  of  bankruptcy ;  or 
if  the  commission  be  not  proceeded  in  for  a  length  of 
time,  and  the  delay  be  not  occasioned  by  the  bankrupt 
himself  against  the  will  of  the  petitioning  creditor  ;(i)  or 
if  the  bankrupts  are  not  described  in  the  commission  ac- 
cording to  their  legal  or  known  description  ;(Jc)  or  if  the 
party  against  whom  the  commission  is  directed  be  a  feme 
covert,  and  it  be  founded  upon  a  trading  prior  to  her 
marriage,(/)  or  be  an  infant,(wi)  or  a  lunatic,(/i)  or  an 
uncertified  bankrupt,(o)  or  if  one  of  the  partners  be 
dead  at  the  time  of  issuing  the  commission  against  the 

(e)  Smith  v.  Stokes,  1  East,  363. 

(/)  Smith  V.  Oriell,  1  East,  368. 

( g)  But  see  the  6  Geo.  4.  e.  16.  s.  18. 

{li)  £x  parte  Barrow,  3  Ves.  554.     Ex  parte  Benjamin,  Buck,  44. 

{i)  Ex  parte  Puleston,  2  P.  Wms.  545.  Ex  parte  Smith,  1  Rose, 
332.  Ex  parte  Fletcher,  ibid.  454.  Harrison's  case,  3  Ves.  &  Bea. 
174.     Ex  parte  Luke,   I  Glyn  &  James.  361. 

{k)  Ex  parte  Beckwith,  1  Glyn  <fe  James.  20. 

(/)   Ex  parte  Mear,  2  Bro.  C.  C.  266.  (w)  See  ante,  p.  261 . 

(n)  Ibid.  (o)  Ibid. 

(1)  Murray  v.  Murray,  5  Johns.  Cha.  Rep.  60. 


DISSOLUTION    BY    BANKRUPTCY.  346 

firm;(/?)  a  writ  of  supersedeas  under  the  great  seal  will, 
in  all  these  cases,  issue  to  set  aside  the  commission. 
And  formerly,  where  a  joint  commission  could  not  be 
supported  as  to  any  one  of  the  partners  against  whom 
it  was  sued  out,  it  was  superseded  against  all ;  but  now 
such  a  commission  may  be  superseded  as  to  one  or  more 
of  the  partners,  without  prejudice  to  its  validity  against 
the  rest.(^)     A  commission  of  bankruptcy  against  part- 
ners may  also  be  superseded  before  it  has  been  open- 
ed,  on  notice  of  the  application   being  given  to   the 
bankrupts,(r)  and  with  the  consent   of  the  petitioning 
creditor  (s)  or  after  it  has  been  opened  it  may 
*be   superseded  at  any  time  after  the  second  [  *347  ] 
meeting,(/)  with  the  consent  of  all  the  creditors 
who  have  proved  their  debts  at  the  time  the  application 
for  a   supersedeas  is  made,(i^)  provided  the  bankrupts 
have  duly  surrendered,(z;)  and  ai'e  not  under  commitment 
for  not  answering  to  the  satisfaction  of  the  commission- 
ers.(z«)     Upon  a  petition  by  the  bankrupts  to  supersede 
a  commission,  the  Lord  Chancellor  generally  directs  an 
issue  to  try  the  bankruptcy.(^)    But  where  the  commis- 
sion plainly  appears  to  be  taken   out   fraudulently  or 
vexatiously,(y)  or  it  is  manifestly  invalid,  the  court  will 
order  it  to  be  superseded  upon  a  petition  by  the  bank- 
rupt for  that  purpose,  without  directing  an  issue  or  an 
action,  notwithstanding  the  petitioning  creditor  is  desi- 
rous to  try  its  validity.(^)     A  commission  being  super- 
seded, it  is  as  if  it  had  never  existed,  and  the  persons 
against  whom  it  was  directed  are  restored  to  all  the 

( p)  Ante,  p.  266. 

}q)  6  Geo.  4.  c.  16.  s.  16.  {r)  Anon,  i  Glyn  &  James.  23. 

\h)  Ex  parte  Trigwell,  1  Ves.  &;  Bea.  348;  and  see  Ex  parte  Law, 
4  Madd.  273. 

{t)  See  general  order,  21st  August,  1818,  3  Madd.  392. 

{u)  Ex  parte  Duckworth,  16  Ves.  416.  And  see  Ex  parte  King, 
2  Ves.  jun.  40.  Ex  parte  Jackson,  8  Ves.  533.  Ex  parte  Crisp,  1 
Atk.  134. 

(o)  Ex  parte  Jones,  11  Ves.  409.  Ex  parte  Roberts,  1  Madd.  72. 
Ex  parte  Wilkinson,  1  Glyn  &  James.  387.  But  see  Ex  parte  Brown, 
2  Swanst.  290. 

(w)  Ex  parte  Bean,  17  Ves.  47.  Ex  parte  McGennis,  18  Ves.  289. 

he)    Ex  parte  Wilson,  1  Atk.  218.  {y)  Id.  ibid. 

(z)    Ex  parte  Gallimore,  1  Madd.  67. 


347  THE  CONSEQ,UENCES  OF  A 

rights  they  antecedently  enjoyed.  Although  there  is 
nothing  express  to  be  found  upon  the  subject  in  the 
books,  there  can  be  little  doubt  that  the  partnership,  sus- 
pended by  the  commission,  will  be  re-established  upon  its 
original  footing,  and  that  the  partners  will  continue  to 
possess  the  partnership  effects,  and  to  carry  on  the  part- 
nership trade,  according  to  tlieir  previous  agreement, 
and  subject  to  the  rules  of  law  we  have  formerly  investi- 
gated.(a) 


[*348]  SECTION  IV. 

The  Consequences  of  a  Dissolution  by  Death. 

We  will  now  endeavour  to  explain  the  consequences 
which  ensue  the  dissolution  of  a  partnership  firm  by  the 
death  of  one  of  its  menibers;  and  these  may  be  arrange 
ed  under  several  heads.  They  may  be  considered,  first, 
as  they  relate  to  survivorship ;  secondly,  as  they  affect 
suits  between  the  surviving  partner  and  the  representa- 
tive of  the  deceased ;  thirdly,  as  they  apply  to  suits 
either  by  the  survivor  against  third  persons,  or  by  third 
persons  against  him ;  and  lastly,  as  they  regard  proceed- 
ings against  the  assets  of  the  deceased  partner. 

We  have  stated  in  a  former  part  of  this  work,(i)  that, 
for  the  benefit  of  trade  and  commerce,  in  order  that  the 
fruits  of  each  person's  labour  and  industry  should  de- 
scend to  his  children  and  family,  stock  used  in  a  joint 
undertaking  by  way  of  partnership  in  trade  is  always 
considered  as  common,  and  not  as  joint  property,  and 
consequently  that  there  is  no  survivorship  therein.  Jus 
accrecsendl  inter  mercatores  pro  henejicio  commercii  locum 
non  hahet.(c)  And  in  an  old  case(c?)  it  was  said  by  the 
Lord  Keeper,  "The  custom  of  merchants  is  extended  to 
all  traders  to  exclude  survivorship."    As  it  is  not  neces- 

la)    See  Wats,  on  Partn.  357. 

{b)    See  ante,  p.  31.  (c)  Co.  Litt.  182.  a. 

(d)  Jeffreys  v.  Small,  1  Vern.  217.  See  also  Annand  v.  Honi- 
wood,  Ca,  in  Cha.  129, 


DISSOLUTION    BY  DEATH.  348 

sary,  therefore,  to  provide  against  the  right  of  survivor- 
ship, which  in  other  cases  would  attach,  it  follows  that 
on  the  death  of  one  partner,  his  representatives  become 
tenants  in  common  with  the  survivor  of  all  the  partner- 
ship effects  in  possession.(l)  But  with  respect  to  choscs 
in  aclion,  survivorship  so  far  exists  at  law,  as  that  the 
remedy  or  right  to  reduce  them  into  possession  vests 
exclusively  in  the  survivor  ;(2)  although,  when  they  are 
recovered,  the  survivor  is  regarded  barely  in  the  light  of 
a  trustee,  and  the  representatives  of  the  deceased  have, 
in  equity,  the  same  right  of  sharing  and  participating  in 
them  which  their  testator  or  intestate  would  have  pos- 
sessed had  he  been  living.(e)(3)  So,  with  respect  to 
real  estate,  we  have  seen(y")  that  where  it  is  pur- 
chased with  the  partnership  *funds,  and  for  part-  [  *349  ] 
nership  uses,  it  is,  on  the  death  of  any  of  the 
partners,  to  be  treated  as  a  chattel  interest,  and  that  it 
does  not  descend  according  to  the  rules  of  the  common 
law;  for,  notwithstanding  former  decisions  to  the  con- 
trary,(^)  it  appears  now  to  be  settled  that  the  mere  fact 
of  a  joint  purchase  of  land  for  the  purpose  of  a  partner- 
nership,  is  of  itself  sufficient  to  change  the  nature  of  the 
property,  so  as,  on  the  death  of  any  one  of  the  part- 
ners, to  render  it  distributable  in  the  same  manner  as 
the  shares  of  the  partnership  in  the  personal  stock.(/^) 
And  where  a  partner,  since  deceased,  contracted  in  his 
own  name  for  a  lease  of  premises  to  be  employed  in  the 
partnership  trade,  the  Court  of  Chancery  restrained  his 
representatives  from  disposing  of  the  lease  when  granted, 

(e)  Martin  y.  Crompe,  1  Ld.  Raym.  340.         (/)  Ante,^.  34. 

(g-)  Tliornton  v.  Dixon,  3  Bro.  C.  C.  199.  Balmain  v.  Shore,  9 
Ves.  500. 

(A)  Townsend  v.  Devaynes,  Mont,  on  Partn.  in  notes,  p.  67.  Selk- 
rig  V.  Davies.  2  Dow.  P.  C  242.     And  see  ante,  p.  35. 


(1)  Dorsey^s  Ex.  v.  Dorsey^s  Mm.  4  TIarr.  k,  McHen.  Rep.  231. 

(2)  Whether  a  dormant  partner  is  entitled,  upon  the  death  of  the 
active  one,  to  take  possession  of  the  partnership  effects,  and  settle  the 
partnership  concerns.     T^usere.     Johnson  v.  Ames,  6  Pick.  Rep.  330. 

(3)  Case  v.  Abeel,  1  Paige's  Cha.  Rep.  393. 


349  THE    CONSEQUENCES    OP    A 

except  for  partnership  purposes,  and  with  the  assent  of 
the  surviving  partner.(/) 

It  seems  to  be  doubtful  whether  the  goodwill  of  a  com- 
mercial trade^  carried  on  in  partnership,  survives^  or  forms 
a  portion  of  the  partnership  stock.  Lord  Rosslyn^  on 
the  one  hand,  has  determined(^)  that  in  such  a  case  the 
goodwill  of  a  trade  carried  on  without  articles  survives, 
and  is  not  to  be  considered  partnership  stock  to  which 
the  representatives  of  a  deceased  partner  have  any 
right.  On  the  other  hand,  Lord  Eldon  has  expressed 
his  doubts  of  the  propriety  of  that  determination,  con- 
sidering it  difficult  to  draw  any  solid  distinction  between 
the  lease  of  the  partnership  premises,  which  is  clearly  a 
part  of  the  joint  stock,  and  the  goodwill,  which  consists 
in  the  habit  of  the  trade  being  conducted  on  those  pre- 
mises.(/)      But  whatever  doubts  may,  in  this  respect, 

exist  as  to  the  good-will  of  a  mercantile  trade, 
[  *350  ]  a  very  intelligible  ^distinction  has  been  suggested 

between  a  commercial  and  a  professional  asso- 
ciation. Sir  John  Leach  has  intimated,  that  where  a 
partnership  is  formed  between  professional  persons,  sur- 
geons for  instance,  and  one  dies,  it  would  be  difficult  to 
maintain  that  the  other  is  obliged  to  give  up  his  business, 
and  sell  the  connexion  for  the  joint  benefit  of  himself 
and  the  estate  of  his  deceased  partner.  His  honour  ad- 
ded, that  when  such  partnerships  determine,  unless  there 
be  stipulations  to  the  contrary,  each  must  be  at  liberty 
to  continue  his  own  exertions ;  and  where  the  determi- 


{%)  Airier  V.  Fouracre,  3  Swanst.  489.  One  of  the  objects  of  the  bill, 
as  originally  framed,  was  to  restrain  the  landlord  from  granting  a  lease 
to  the  representatives  of  the  deceased  partner  ;  but  hoxdr  Eldon  observed, 
that  as  the  contract  vi^as  with  the  deceased  alone,  unless  there  was  evi- 
dence that  the  landlord  knew  that  it  was  made  on  behalf  of  the  partner- 
ship, the  surviving  partner  had  no  equity  against  him,  and  that  the  land- 
lord could  not  in  such  a  case  be  compelled  to  grant  a  lease  to  the 
survivor. 

Ik)  Hammond  v.  Pouglas,  5  Ves.  539. 
f  \l)  Crawshay  v.  Collins,  15  Ves.  227.  If  partners  become  bank- 
rupts, the  goodwill  of  their  trade  passes  to  their  assignees,  who  may 
sell  it  for  the  benefit  of  the  creditors.  Such  a  sale,  however,  will  not 
operate  to  prevent  the  partners  setting  up  the  same  trade  again,  and  in 
the  same  place.     Crutwell  v.  Lye,  17  Ves.  335.    S.  C.  1  Rose,  123. 


DISSOLUTION    BY    DEATH.  350 

nation  is  occasioned  by  the  death  of  one,  the  right  of  the 
survivor  cannot  be  affected.(?n)(l) 

It  has  before  been  observed,  that  a  partner  cannot  by 
will  leave  his  interest  in  the  business  to  a  legatee,  nor 
has  the  executor  or  administrator  of  a  deceased  partner 
any  claim  to  be  admitted  a  partner.(?i)  It  is  usual,  how- 
ever, in  articles  of  partnership,  to  provide  for  that  con- 
tingency ;  and  by  special  agreement,  one  or  all  of  the 
partners  may  severally  secure  the  reversion  of  their  in- 
terest in  the  partnership  business  to  their  representative 
or  assignee.(o)  But  a  surviving  partner  cannot,  under 
any  circumstances,  refuse  to  admit  a  legatee,  if  he  him- 
self claims  any  benefit  under  the  will.(;?)  And  where 
the  deed  of  partnership  stipulates  to  permit  the  personal 
representative,  or  any  other  nominee  of  a  deceased  part- 
ner to  become  partner,  it  is  of  course  only  optional,  and 
not  imperative  on  them  to  become  such  partners ;  and 
although  they  will  be  entitled  to  a  reasonable  time  -to 
inspect  and  examine  the  accounts,  yet  they  cannot  insist 
on  having  the  accounts  taken  before  electing  to  become 
partners.(^)  In  the  event  of  their  refusal  to  succeed  the 
testator  on  the  terms  of  the  partnership,  the  death  puts 
an  end  to  the  concern,  but  not  upon  a  dissolution  wrought 
by  exclusion  of  the  appointees,  for  they  never  become 
partners.(r)  Where  a  partner,  having  a  power  to  no- 
minate a  person  to  succeed  him,  by  will  directed  his  ex- 
ecutors to  carry  on  the  trade,  and  bequeathed  to  them 
his  share  of  the  capital,  with  a  power  to  dissolve  the 
partnership,  or  nominate  any  other  person  to  succeed 
him  or  them,  and  by  a  codicil  he  desired  that  if  his 

(m)  Farr  v.  Pearce,  3  Madd.  74. 
(n)  Crawshay  v.  Maule,  1  Swanst.  509. 

(o)  Pearce  v.  Chamberlain,  2  Ves.  33.     Godfrey  v.  Browing,  cited 
ibid.     Balmain  v.  Shore,  9  Ves.  500. 
[p]  Crawshay  v.  Maule,  supra, 
(q)  Pigott  V.  Bagley,  1  M'Clelland  &;  Younge,  569. 
(r)  Kershaw  v.  Matthews,  2  Russ.  62. 


(1)  Partners  in  the  practice  of  physic,  are  within  the  law  merchant 
which  excludes  the  jus  accrescendi  between  traders.  ^Uen  v.  Blan- 
chard,  9  Cow.  Rep.  631. 


351  THE    CONSEQUENCES    OF    A 

[  *351  ]  *executors  continued  to  trade,  and  his  grand- 
sons attained  twenty-one,  his  executors,  or  the 
survivor  of  them,  would  nominate  them  partners  in  his 
place,  and  bequeathed  to  his  grandsons  a  certain  sum 
a-piece,  payable  out  of  the  profits  of  the  trade,  so  soon 
as  they  became  partners,  but  directed  such  legacies  to 
sink  into  the  estate,  if  the  grandsons  died  before  twenty- 
one,  or  declined  the  partnership.  In  another  codicil  he 
expressed  himself  thus : — "  It  shall  be  entirely  in  the  dis- 
cretion of  my  executors,  whether  to  appoint  D.  (one  of 
the  grandsons)  to  be  a  partner  or  not,  any  direction  in 
my  will  or  codicil  to  the  contrary  notwithstanding  ;  and 
if  they  do  not  think  proper  to  appoint  him,  the  legacy 
given  to  him  to  be  void."  Both  grandsons  having  at- 
tained twenty-one,  commenced  a  suit  in  equity  against 
the  executors,  to  be  admitted  partners  from  the  time 
they  attained  that  age,  for  an  account  of  the  profits  from 
that  period,  and  for  payment  of  their  legacies.  One  of 
the  executors  stated,  that  he  had  always  been  desirous 
for  their  admission  into  the  partnership,  but  the  other 
refused  under  an  idea  that  the  terms  of  the  will  and  codi- 
cil w^ere  not  compulsory.  But  the  court  w^as  of  opinion, 
that  as  there  w^as  no  declaration  by  the  executors  either 
before  or  at  the  time  the  grandsons  attained  twenty-one 
that  they  w^ere  unfit  to  be  admitted,  and  there  was  a  dif- 
ference of  opinion  among  the  executors  upon  the  sub- 
ject, the  legatees  were  entitled  to  the  relief  they  sought 
in  its  full  extent. (s) 

We  have  seen(^)  that,  as  to  future  dealings,  a  part- 
nership is  terminated  by  the  death  of  one  of  the  part- 
ners; but  although,  in  that  point  of  view,  death  ipso  facto 
operates  as  a  determination,  yet  a  partnership  cannot  to 
all  intents  and  purposes  be  said  to  be  dissolved  by  death. 
The  representatives  of  a  deceased  partner  are  not  strictly 
partners  with  the  survivor ;  but  still  that  community  of 
interest  subsists  between  them  which  is  necessary  for 
the  winding  up  of  the  aflfairs,  and  which  requires  that 
what  was  partnership  property  before,  shall  continue  so 
for  the  purpose  of  distribution  according  to  the  rights  of 

(s)   Wainwright  v.  Waterman,  1  Ves.  jun.  311. 
\()  See  ante,  p.  219. 


DISSOLUTION    BY    DEATH.  351 

the  partners.(M)  This  event  generally  is,  and  ought 
always  to  be,  contemplated  and  provided  for  in 
the  articles  of  partnership.  Positive  ^covenants  [*352] 
between  the  parties  as  to  the  continuing  of  the 
business,  the  distribution  of  the  property,  and  the  settle- 
ment of  accounts,  upon  such  a  contingency,  often  pre- 
vent a  great  deal  of  confusion,  hardship,  and  injustice. 
In  the  absence  of  express  negative  stipulation,  the  ex- 
ecutor has  a  right  to  insist  upon  the  application  of  the 
joint  property  to  the  payment  of  the  joint  debts,  and  a 
division  of  the  surplus  ;(v)  and  if,  within  a  reasonable 
time  the  survivor  do  not  account  with  him  and  come  to 
a  settlement,  a  court  of  equity  will  grant  an  injunction 
restraining  him  from  disposing  of  the  joint  stock,  and 
from  receiving  the  outstanding  debts.(i^)  So  the  sur- 
viving partners  have  equally  the  power  of  insisting  that 
the  partnership  accounts  shall  be  finally  taken'  and  the 
joint  affairs  wound  up.  But  to  a  suit  by  them  for  that 
purpose,  the  personal  representative  of  the  deceased 
partner  is  a  necessary  party ;  for  as  the  accounts  to  be 
adjusted  relate  to  partnership  dealings,  which  took  place 
during  his  lifetime,  and  the  adjustment  of  which  must 
affect  his  personal  estate,  his  executor  or  administrator 
has  such  an  interest  in  the  question  that  he  will  not  be 
concluded  by  any  decree  made  in  his  absence.  It  may 
happen,  however,  that  no  person  filling  the  character  of 
legal  personal  representative  exists;  but  where  that  is 

(m)  Ex  parte  Williams,  11  Ves.  5.  Wilson  v.  Greenwood,  1 
Swanst.  480.  S.  C.  1  J,  Wilson,  223.  Crawshay  ».  Maule,  1  Swanst. 
506.  S.  C.  1  J.  Wilson,  181.  Beak  v.  Beak,  3  Swanst.  627.  ^pp. 
VuUiamy  v.  Noble,  3  Meriv.  614. 

(v)  Ex  parte  Ruffin,  6  Ves,  128.  Where  by  the  articles  of  part- 
nership for  a  term  of  seven  years,  it  was  provided  that  on  the  death  of 
any  one,  the  concern  should  be  carried  on  until  the  end  of  the  term,  as 
if  he  had  been  living,  for  the  joint  benefit  of  the  surviving  partner  and 
the  representatives  of  the  deceased,  and  then  the  stock  should  be  di- 
vided according  to  the  respective  interests ;  it  was  held,  that  as  the  ar- 
ticles could  not  be  literally  performed  by  the  division  of  the  property 
and  interest  in  continuing  contracts,  the  settlement  could  only  be  by  a 
sale  of  the  whole,  and  division  of  the  proceeds.  Cook  v.  CoUingridge, 
1  Jac.  607. 

{w)  Hartz  v.  Schrader,  8  Ves.  317. 

58 


352  THE    CONSEQUENCES    OF    A 

the  case,  the  ecclesiastical  court  will,  on  the  refusal  of 
the  next  of  kin  after  citation,  grant  a  limited  administra- 
tion to  a  person  nominated  by  the  surviving  partners,  if 
such  a  grant  is  shown  to  be  essential  to  the  due  prose- 
cution of  the  suit.(a;)  In  a  late  case  it  w^as  determined 
that  the  executor  of  a  deceased  partner  could  not  file  a 
bill  against  the  surviving  partners  and  the  assignees 
under  a  commission  of  bankruptcy  issued  against  them, 
charging  that  the  commission  was  concerted,  and  pray- 
ing for  an  account  against  the  survivors,  or  if  the  com- 
mission was  valid,  that  he  might  prove  for  what  was 

due,  on  the  ground  that  the  proper  course  to 
[  *353  ]  *impeach  the  validity  of  the  commission  was 

by  petition  in  the  bankruptcy,  and  not  by  bill.(y) 
When  a  suit  is  instituted  for  an  account  of  the  part- 
nership stock,  the  principal  question  is,  in  what  manner 
the  accounts  are  to  be  taken,  so  as  to  produce  a  final 
arrangement.  They  may  be  taken  in  various  ways :  the 
distinction,  however,  is,  that  where  there  is  not  a  special 
agreement  directing  the  mode  in  which  the  accounts 
shall  be  adjusted,  they  must  be  taken  in  the  way  ordi- 
narily adopted  by  a  court  of  equity ;  but  where  a  special 
agreement  has  been  made  relative  to  their  adjustment,  it 
will  be  abided  by,  and  be  acted  upon  as  furnishing  the 
rule  by  which  the  adjustment  is  to  be  governed,  provided 
the  parties  themselves  have  observed  it.(r)  The  right 
possessed  by  partners  of  determining  inter  se  the  mode 
and  manner  in  which  the  accounts  shall  be  settled  on 
their  deaths  respectively  is  necessarily  unrestricted,  and 
whatever  course  may  be  agreed  upon,  it  must  form  the 
basis  of  any  settlement  between  the  representatives  of 
the  deceased  and  the  surviving  partner.  Partners  may 
lawfully  stipulate,  by  the  articles  of  partnership,  that  the 
accounts  shall  be  made  up  annually,  and  that  if  any 
error  shall  happen  to  be  made  in  stating  them,  it  shall 
be  rectified  during  the  lifetime  of  both  parties ;  and  where 
there  is  such  a  stipulation,  an  account  settled  during 

(x)  Cawthom  v.  Challie,  2  Sim.  &  Stu.  127. 

[y)  Bailey  v.  Vincent,  5  Madd.  48. 

(z)  Jackson  v.  Sedgwick,  1  Swanst.  469. 


DISSOLUTION    BY    DEATH.  353 

their  lives  will,  notwithstanding  error,  be  conclusive 
after  their  deaths.(«)  (1)  But  if  the  articles  themselves 
prescribe  the  mode  in  which  the  accounts  are  to  be  ad- 
justed, and  the  partners  for  several  years  not  only  do 
not  adhere  to  them,  but  engage  in  business  to  which 
their  application  would  work  injustice,  the  executors  of 
a  deceased  partner  will  not  be  entitled  to  insist  upon  the 
account  being  taken  in  conformity  with  the  stipulations 
contained  in  them.  Thus,  where  three  persons,  on  enter- 
ing into  partnership  as  ship  agents  and  insurance  bro- 
kers, stipulated  in  the  articles  for  an  annual  settlement 
of  accounts,  and  for  payment  to  the  representatives  of  a 
deceased  partner  of  an  allowance,  in  lieu  of  profits  since 
the  last  annual  account,  proportioned  to  the  amount  of 
his  share  of  profits  during  two  years  preceding,  and  the 
partners,  afterwards  engaging  in  the  exportation  of 
goods  on  their  joint  account,  the  returns  of 
which  could  not  be  ascertained  at  the  ^limited  [  *354  ] 
period,  omitted  for  several  years  to  settle  annual 
accounts,  it  was  determined  that  the  stipulations  in  the 
articles  were  waived  in  equity;  and  an  injunction  was 
granted  to  restrain  the  representatives  of  a  deceased 
partner  from  proceeding  on  a  bond  given  by  the  surviv- 
ing partners,  for  repayment  of  his  share  according  to  the 
articles,  before  the  settlement  of  accounts  of  transac- 
tions pending  at  his  decease,  on  which  a  loss  was  sub- 
sequently sustained.(6)  So,  where  the  articles  provided 
that  there  should  be  a  yearly  adjustment  of  the  accounts 
upon  a  certain  day  in  March,  and  that  in  case  of  the  death 
of  either,  he  should  not  be  entitled  to  any  interest  in  the 
concern  from  the  date  of  the  last  yearly  settlement;  the 
previous  last  annual  adjustment  having  taken  place  in 
November  preceding  the  death  of  one  of  the  partners  in 
February  J  it  was  held  that  his  representatives  were  en- 
titled to  the  profits  up  to  that  day.(c)     The  account, 

(a)  Gainsborough  v.  Stork,  Barnard,  312. 

(b)  Jackson  v.  Sedgwick,  1  Swanst.  460 ;  and  see  Geddes  v.  Wal- 
lace, 2  Bligh,  270. 

(c)  Petty  V.  Janeson,  6  Madd.  146. 

(1)  See  Heartt  v.  Corning,  Ex.,  3  Paige's  Cha.  Rep.  566. 


354  THE    CONSEQUENCES    OF    A 

where  the  articles  do  not  prescribe  the  manner  in  which 
it  is  to  be  taken,  or  the  provisions  respecting  its  adjust- 
ment have  been  waived,  must,  according  to  the  practice 
of  a  court  of  equity,  commence  with  the  last  stated  ac- 
count; and  if  there  be  not  any  stated  account,  it  must 
be  taken  from  the  time  of  the  commencement  of  the 
partnership.(c?)  In  taking  the  account,  profits  accrued 
after  the  death  of  one  partner  are  considered  as  an  ac- 
cession to  the  capital,  and  as  joint  property:  for  though 
a  partnership  is  ipso  facto  determined  by  the  death  of  a 
partner,  yet  if  the  surviving  partners  carry  on  the  trade 
with  the  capital  of  the  deceased,  instead  of  converting 
the  assets,  and  coming  to  a  settlement  with  the  execu- 
tors, the  latter  are  entitled  to  a  rateable  share  of  the 
profits  during  the  time  that  the  capital  has  been  so  em- 
ployed, partners  being  under  an  implied  obligation  "  to 
use  the  joint  property  for  the  benefit  of  all  whose  pro- 
perty it  is  ;"(e)  the  account,  therefore,  is  to  end  with  the 

state  of  the  stock  at  the  time  of  the  death  of  the 
[  *355  ]  partner,  *and  the  proceeds  thoreof  until  it  is 

got  in.(/)  But  an  allowance  will  be  made  to 
the  surviving  partner  for  his  management  of  the  trade, 
where  he  carries  it  on  for  the  joint  account  without  any 
obligation  to  do  so  under  the  partnership  deed  ;(^)  al- 
though where  the  trade  is  continued  in  pursuance  of  an 
agreement  in  the  co-partnership  articles,  which  contains 
no  provision  for  an  allowance  to  the  survivor  for  his 

[d)  Beak  v.  Beak,  Finch,  190,  Where  the  object  of  a  suit  is  not 
only  to  have  a  partnership,  but  other  distinct  accounts  taken,  the  de- 
cree referring  it  to  the  master  should  expressly  direct  him  to  take  the 
account  of  the  partnership ;  for  it  seems  to  be  a  rule  in  the  offices  of  the 
masters,  not  to  take  a  partnership  account,  unless  particularly  directed 
to  do  so.     WooUey  v.  Gordon,  1  Tamlyn's  Rep.  11. 

(e)  Brown  v.  Litton,  1  P.  Wms.  140.  Hammond  v.  Douglas,  5 
Ves.  539.  Hill  v.  Burnham,  and  Coxwell  v.  Broraet,  cited  15  Ves. 
220,  223.     Brown  v.  De  Tastet,  1  Jac.  284. 

(/)  Beak  v.  Beak,  Finch,  190.  A  sale  of  the  share  of  the  deceased 
by  his  executor  to  the  partners,  for  the  purpose  of  being  resold  to  him, 
has  been  held  void,  and  his_  estate  entitled  to  the  portion  of  the  profits, 
as  if  his  interest  in  the  partnership  still  continued.  Cook  v.  Colling- 
ridge,  1  Jac.  607. 

(  g)  Brown  r.  De  Tastet,  1  Jac.  284. 


DISSOLUTION    BY    DEATH.  355 

trouble  in  managing  the  concern,  he  is  not  in  a  situation 
to  claim  any  al]owance.(/i)  (1) 

When  an  infant  or  other  person  becomes  entitled  to 
the  share  of  a  deceased  partner,  and  the  share  is  con- 
tinued in  the  trade  either  in  the  case  of  the  intestacy  of 
the  deceased,  or  of  his  testacy  without  an  express  direc- 
tion in  the  will  to  that  effect,  the  party  entitled  has  the 
option  of  taking  either  the  interest,  or  the  profits  that 
have  arisen  from  the  use  of  the  capital.  But,  inasmuch 
as  the  principle  of  the  option  given  is,  whether  the  party 
will  or  not  elect  to  ratify  the  employment  of  the  capital, 
if  he  do  so  elect,  he  cannot  ad  libitum  take  interest  or 
profits  for  different  periods,  but  must  abide  by  his  elec- 
tion for  the  whole  period.  Circumstances  may,  indeed, 
arise  to  entitle  him  to  divide  his  election,  and  to  take 
profits  for  one  and  interest  for  another  part  of  the 
period,  as  if  the  property  were  subsequently  embarked  in 
a  new  trade,  or  at  a  diflferent  place,  or  in  adventures 
substantially  new  at  the  same  place ;  but,  in  all  cases,  a 
decree  will  be  made,  directing  an  inquiry,  whether  the 
account  of  interest  or  of  profit  is  most  advantageous, 
and  the  option  will  be  given  for  the  larger  sum.(^)  So, 
where  A,  B,  and  C,  carried  on  business  as  bankers  in 
partnership,  and  were  interested  in  the  profits  and  losses 
of  such  banking  concern  respectively,  as  follows :  A  for 
five-twelfths,  B  for  two-twelfths,  and  C  for  five-twelfths : 
a  commission  of  bankruptcy  was  awarded  against  them, 
but  the  full  amount  of  the  joint  and  separate  debts  of 
the  bankrupts,  with  interest,  was  paid.  To  complete 
such  payment,  real  estates  of  great  value,  belonging  to 
A  were  sold  by  the  assignees,  and  on  the  whole 
A  contributed  ^considerably  beyond  his  propor-  [  *356  ] 

{h)  Burden  v.  Burden,  1  Ves.  &  Bea.  170,  where,  under  such  cir- 
cumstances, the  survivor  bona  fide  incurs  expenses  on  the  erroneous 
supposition  that  he  is  sole  owner  of  the  business,  in  the  taking  of  the 
account  he  will  be  allowed  a  moiety.     Id.  ibid. 

(i)  Heathcote  v.  Hulme,  1  Jack.  &  Walk.  122. 


(1)  Franklin  v.  Robinson,  1  Johns.  Cha.  Rep.  157.  Bradford  v. 
Ktmberly  et  al.  3  Johns.  Cha.  Rep.  431.  Holmes  v.  Higgins,  1  Barn. 
&  Cresw.  Rep.  74.     Causten  v.  Burke,  2  Harr.  &  Gill,  295. 


356  THE    CONSEqUENCES    OF    A 

tionate  share  of  the  losses  of  the  firm.  Part  of  the 
said  estates  were  sold  during  the  life  of  A ;  part  were 
contracted  to  be  sold,  but  not  sold,  at  the  time  of  his 
death ;  and  the  remainder  M^as  sold  since  his  death,  and 
a  surplus  remained  in  the  hands  of  the  assignees :  it  was 
determined,  that  the  heir  of  A,  as  such,  had  no  claim  in 
respect  of  the  estates  of  A  sold  in  his  lifetime,  the  same 
being  converted  out  and  out,  and  the  produce  must  be 
taken  as  it  was  found ;  but  that  the  surplus  monies  in  the 
hands  of  the  assignees,  to  the  amount  of  the  produce  of 
the  estates  sold  after  the  death  of  A,  belonged  to  the 
heir  at  law,  with  four  per  cent,  interest,  unless  rents  and 
profits  were  claimed.(^) 

The  surviving  partner  having  at  law  the  right  to  the 
custody,  care,  and  management  of  the  joint  estate,  a 
court  of  equity  will  not,  generally  speaking,  on  a  bill 
being  filed  against  him  for  an  account  of  the  partnership 
transactions,  deprive  him  of  his  legal  right  by  appoint- 
ing a  receiver ;  because,  notwithstanding  the  death  of 
one,  the  confidence  in  the  other  partner  remains.(/)  But 
if  he  be  guilty  of  such  acts  of  mismanagement  and  im- 
proper conduct  as  satisfactorily  establish  that  he  cannot 
safely  be  intrusted  with  the  joint  estate,  the  court  will 
then  exercise  its  power,  and  will  appoint  a  receiver  to 
collect  in  the  debts,  and  dispose  of  the  property.(m) 
And  where,  upon  a  bill  for  a  discovery  and  an  account, 
it  appeared  that  there  were  many  outstanding  debts,  and 
that  the  surviving  partner  was  carrying  on  a  distinct 
trade  with  the  debtors  to  the  joint  estate,  and  forbore  to 
call  upon  them  for  payment  of  the  joint  debts,  the  court 
directed  that  a  receiver  should  be  appointed  unless  the 
survivor,  within  a  limited  time,  gave  security  for  pay- 
ment of  a  moiety  of  the  amount  of  the  debts.(n)  But 
if  both  partners  are  dead,  and  the  representatives  of  the 
one  institute  a  suit  for  an  account  against  the  represen- 

{k)  Banks  v.  Scott,  5  Madd.  493. 

(/)  Philips  V.  Atkinson,  2  Bro.  C.  C.  272 ;  and  see  Hartz  v.  Schra- 
der,  8  Ves.  317. 

{m)  Philips  V.  Atkinson,  supra. 

{n)  Estwick  v.  Coningsby,  1  Vern.  118. 


DISSOLUTION    BY    DEATH.  356 

tatives  of  the  other,  the  court  will,  as  a  matter  of  course, 
grant  a  receiver ;  for  the  confidence  which  subsisted  dur- 
ing the  lives  of  both,  and  continued  after  the  death  of  a 
single  partner,  ceases  with  the  death  of  the  survivor  and 
does  not  extend  to  his  representatives.(o)  A  court  of 
equity  will  not,  on  the  application  of  the  executor  of  a 
deceased  partner,  restrain  the  surviving  partners  from 
using  the  name  of  the  deceased  in  the  firm  of 
*their  trade ;  because,  by  continuing  his  name  [  *357  ] 
in  the  partnership  firm,  no  liabilty  can  be  en- 
tailed upon  his  estate,  and  although  it  may  be  a  fraud 
upon  the  public,  yet  that  circumstance  will  not  entitle  the 
executor  to  an  injunction.(p) 

Where  the  executors  of  a  deceased  partnei>  fihng  their 
bill  for  an  account,  have  got  all  the  partnership  books 
and  accounts,  the  defendant  regularly  ought  to  file  a  cross 
bill  for  an  account  and  discovery.(<jr)  But  if  he  states, 
by  his  answer,  that  the  bill  calls  for  a  discovery  which 
he  cannot  make  completely  without  seeing  the  partner- 
ship books  and  accounts,  and  that  he  verily  believes 
those  books  and  accounts  (to  the  joint  possession  of 
which  both  partners  were  entitled)  are  in  the  hands  of 
the  plaintiffs,  the  court,  although  it  will  not  order  the 
accounts  to  be  produced,  will  on  motion  stay  proceedings, 
for  want  of  a  sufficient  answer,  until  he  has  been  as- 
sisted with  an  inspection.(r)  And  in  such  a  case,  a 
relaxation  of  the  general  rule  is  no  more  than  obvious 
justice  requires.(s)  When  surviving  partners  claim  to 
be  creditors  of  a  deceased  partner,  in  respect  of  a  balance 
due  on  his  separate  account,  arising  out  of  distinct  trans- 
actions with  the  partnership,  it  has  been  held  at  law  that 
no  legal  debt  exists  under  such  circumstances ;(/)  but 
nothing  is  more  clear  than  the  right  of  equitable  creditors 
to  be  satisfied,  where  an  account  has  been  decreed ;  and 
no  distribution  of  assets  can  take  place  until  the  accounts 

(o)  Philips  V.  Atkinson,  supra, 
(p)  Webster  V.  Webster,  3  Swanst.  490.  n. 
}q)  Anon.  2  Dick.  778.     Wilby  v.  Pistor,  7  Ves.  412. 
(r)  Pickering  v.  Rigby,  18  Ves.  484. 

\s)  The  Princess  of  Wales  v.  Earl  of  Liverpool,  1  Swanst.  125. 
(f)  Bosanquet  V.  Wray,  2Mar8h.  319.     S.  C.  6  Taunt.  597.     And 
see  ante,  p.  118. 


357 


THE  CONSEQUENCES  OF  A 


of  all  the  creditors,  of  every  description,  have  been  gone 
into.  The  fact  that  the  debtor  was  a  partner  in  the  firm 
of  the  creditors,  however  it  may  alter  the  nature  of  their 
debt,  is  of  no  weight  at  all  with  reference  to  their  right 
to  have  the  accounts  taken.(i/)  And  where,  on  the  dis- 
solution of  a  partnership,  one  partner  for  a  valuable 
consideration,  covenants  to  pay  the  joint  debts,  and  to 
indemnify  the  other  partner  against  them,  and  the  cove- 
nantor dies,  leaving  joint  debts  undischarged,  of  which 
the  covenantee  is  compelled  to  pay  some,  the  latter  may, 

by  a  bill  in  equity,  not  only  reimburse  himself  out 
[  *358  ]  of  the  assets  of  the  deceased,  but  may  have  *those 

assets  applied  in  discharge  of  the  remainder  of 
the  joint  debts.(v)  (1) 

With  respect  to  actions  eitJier  by  or  against  surviving 
partners^  they  differ  in  no  essential  particulars  from  ac- 
tions brought  by  or  against  the  whole  firm,  except  in  the 
person  by  whom  in  the  one  case,  and  against  whom  in 
the  other,  the  right  in  dispute  is  to  be  asserted.  We 
have  already  had  occasion  frequently  to  remark  that,  on 
the  death  of  one  partner,  all  legal  rights  and  remedies 
appertaining  to  the  partnership  formally  vest  in  the  sur- 
vivor. The  right  of  action  must  necessarily  survive  j 
otherwise,  according  to  the  technicalities  of  law,  there 
would  be  a  failure  of  justice ;  for  the  rights  of  the  ex- 
ecutor and  of  the  survivor  being  of  several  natures,  if 
they  joined  in  the  same  suit  there  consequently  must  be 
several  judgments,  which  in  a  single  action  is  not  allow- 
ed.(w)  Substantially,  however,  the  right  of  the  repre- 
sentatives of  the  deceased  is  not  varied  by  this  legal 
anomaly;  for  there  being  no  survivorship  in  point  of 
interest,  the  instant  any  joint  choise  in  action  is  reduced 


iu)  Paynter  v.  Houston,  3  M6riv,  302. 

\v)  Musson  V.  May,  3  Ves.  &;  Bea.  194. 

{w)Kem^  V.  Andrews,  Carth.  170.  S.  C.  3 Lev. 290.  1  Shaw,  188. 


(1)  The  case  of  Kerr  v.  Hawthorne  et  at.  4  Yeates,  170,  would 
seem  to  have  been  decided  with  a  view  to  the  principle  stated  in  the 
text. 


DISSOLUTION    BY    DEATH.  358 

into  possession  by  the  legal  process  of  the  survivor,  the 
ricrht  of  the  representatives  to  their  distributive  propor- 
tion attaches.(^)  So  with  respect  to  joint  contracts 
entered  into  with  a  firm,  and  from  which  a  joint  legal 
responsibihty  results,  it  can  at  law,  after  the  death  of 
one  partner,  be  enforced  against  the  survivor  alone,  and 
finally  against  the  representatives  of  the  last  survior  ;{y) 
for  the  law  considers  partnership  contracts,  which  are 
joint  in  form,  as  producing  only  a  joint  obligation,  which 
on  the  death  of  one,  attaches  exclusively  upon  the  sur- 
vivor.(z)  (1)  Indeed  the  reason  which  has  been  advanced 
as  operating  to  prevent  personal  representatives  from 
asserting  jointly  with  the  survivor,  a  right  resulting  to 
the  partnership  firm,  applies  with  undiminished  force,  if 
a  right  accruing  to  a  stranger  from  the  firm  should  be 
attempted  to  be  enforced  against  them  and  the  survivor. 
Executors  or  administrators,  if  legally  responsible,  could 
only  contract  such  a  responsibility  by  the  assumption  of 
their  representative  characters ;  and  it  therefore 
follows,  that  they  could  *only  be  charged  de  [*359] 
bonis  testatoris,  whereas  the  surviving  partner 
would  be  liable  de  bonis  propriis  ;  so  that  the  judgments 
must  be  different,  as  they  applied  either  to  the  survivor 
or  to  the  representatives  of  the  deceased  partner.  And 
little  inconvenience  arises  from  the  present  rule,  for,  not- 
withstanding the  surviving  partner  is  liable  for  the  whole 
debt  in  the  first  instance,  he  can  call  upon  the  executor 
of  his  copartner  for  a  contribution ;  nor  is  there  any 
hardship  upon  the  creditor,  since,  in  the  event  of  the**in- 
solvency  of  the  surviving  partner,  we  shall  presently  see 
that  he  has  a  remedy  in  equity  against  the  estate  of  the 
deceased. 

Although,  by  the  death  of  one  partner,  a  joi7it  debt  or 

(x)  Kemp  V.  Andrews,  Carth.  170.  S.  C.  3  Lev.  290.  1  Shaw. 
188.     Martin  v.  Crompe,  1  Ld.  Raym.  340. 

(y)  Calder  v.  Rutherford,  3  Brod.  &  Bingh.  302. 

(z)  Anon.  1  Mod.  45.  Hyat  v.  Hare,  Comb.  383.  Smith  v.  Bar- 
row, 2  T.  R.  470. 


(1)  Burgtvin  v.  Hostler's  Mm.  Tayl.  Rep.  124, 
59 


359  THE    CONSEQUENCES    OF    A 

duty  is  extinguished  in  law,  as  far  as  regards  the  enforc- 
ing it  against  his  representatives  or  his  estate,  yet  a 
court  of  equity  has,  upon  general  principles,  laid  down, 
that  there  shall  be  a  recourse  against  the  assets  of  a  de- 
ceased debtor.  At  law,  a  partnership  contract  is  joint 
only ;  but  equity,  adopting  the  law-merchant  to  its  full 
extent,  holds  it  to  be  both  joint  and  several:  indeed, 
were  the  surviving  partner,  who  ought  in  the  first  in- 
stance to  be  called  upon  to  pay,  not  capable  of  answer- 
ing the  demand,  it  would,  notwithstanding  the  legal  claim 
is  dissolved,  be  inconsistent  with  equitable  notions  that 
the  estate  of  the  deceased  partner  should  remain  solvent 
without  satisfying  the  joint  engagements. (a)  It  was  for- 
merly matter  of  doubt  with  Lord  Thurlow,  whether  the  re- 
presentative of  a  deceased  partner  could  be  used  in 
equity  ;(6)  but  it  is  now  completely  settled,  on  the  pre- 
sumption of  insolvency  in  the  surviving  partners,  that  the 
deceased  partner's  estate  remains  liable,  until  the  debts 
which  affected  him  at  the  time  of  his  death  have  been 
fully  discharged.(c)(l)  And  this  equitable  doctrine  seems 
to  have  been  carried  so  far  as  to  have  enabled  the  joint 
creditors,  subject  only  to  the  right  of  priority  in  respect 
of  debts  of  a  superior  degree,  to  come  in  upon  the  sepa- 
rate estate  of  the  deceased  pari  passu  with  separate 

(a)  Lane  v.  Williams,  2  Vern.  277,  292.  Gray  v.  C  his  well,  Q  Ves. 
125.  See  also  dictum  of  Lord  Hardwicke  in  Primrose  v.  Bromley,  1 
Atk.  90. 

(b)  Hoare  v.  Contencin,  1  Bro.  C.  C.  27. 

(c)  VuUiamy  v.  Noble,  3  Meriv.  619.  And  see  Newland  v.  Cham- 
pion, 1  Ves.  Sen.  105.     Stephenson  v.  Chiswell,  3  Ves.  566. 


(1)  Marshall  et  al.  v.  De  GrooVs  Mm.  1  Caines'  Ca.  123.  Storer 
V.  Hinckley's  Ex.  Kirkby's  Rep.  147.  Long  et  al.  v.  KeppeWs  Ex.  1 
Binn.  123.  Van  Reimsdyk  v.  Kane  et  al.  1  Gallis.  Rep.  630.  Ha- 
mersley  v.  Lambert  et  al.  2  Johns.  Cha.  Rep.  508.  Sale  v.  Bish- 
man's'^Ex.  3  Leigh's  Rep.  548.  Cope  v.  Warner,  13  Serg.  &  Rawle, 
411.  But  if  the  surviving  partner  has  secured  the  debt  by  giving  bond 
with  surety  for  it,  the  surety  must  be  proceeded  against  at  law,  before 
the  estate  of  a  deceased  partner  can  be  had  recourse  to  in  equity,  upon 
the  death  and  insolvency  of  such  surviving  partner.  Linney's  Adm.  v. 
Dare's  Mm.  2  Leigh's  Rep.  588.  And  it  makes  no  difference  that  the 
partner,  whose  estate  is  sought  to  be  subjected  to  the  payment  of  the 
debt,  was  a  secret  partner.     Coke  v.  Burnett's  Ex.  6  Munf.  464. 


DISSOLUTION    BY    DEATH. 


360 


creditors,  on   the   ground   that   a   decree  for  payment 
of  debts,  when  obtained,  operated  as  much  for  the 
♦benefit  of  the  joint  as  of  the  separate  credi-  [  *360  ] 
tors.(rf)     But  Lord  Eldon,  considering  that  the 
accident  of  death  ought  not  to. place  the  joint  creditors 
upon  a  better  footing,  as  against  separate  creditors,  than 
they  would  have  been  placed  in  had  the   party  lived 
and  become  a  bankrupt,  limited  this  equitable  right,  and 
determined  that,  as  in  bankruptcy,  the  joint  creditors 
could  only  claim  the  surplus  of  the  separate  estate  of  the 
deceased  after  satisfaction  of  the  separate  debts.(e)(l) 
But  subject  to  this  limitation  alone,  which  obviates  jus- 
tice to  the  separate  creditors  required  should  be  inter- 
posed, joint  creditors,  whose  claims  were  consummate  in 
the  lifetime  of  all  the  partners  have  an  indisputable  right 
of  resorting  against,  and  of  having  their  demands  satis- 
fied out  of  the  assets  of  a  deceased  partner.     And  those 
assets  will  be  an  available  fund  to  joint  creditors  in  all 
cases  in  which  the  deceased,  had  he  been  living,  would 
have  been  liable  qua  partner;  and,  therefore,  notwith- 
standing the  claims,  sought  to  be  enforced,  may  have 
arisen  out  of  a  fraudulent  misappropriation,  by  one  part- 
ner, of  funds  or  securities  intrusted  by  the  creditors  of 
the  firm,  yet  if  the  deceased  was  instrumental  to  the 
misappropriation,  or  if  (he  not  being  being  privy  to  it) 
the  firm,  of  which  he  was  at  the  time  a  member,  was  be- 
nefited by  an  application  to  its  use  of  those  funds  or  secu- 
rities, or  their  produce,  his  estate  will  be  liable  to  make 
good  the  losses  which  the  creditors  may  have  sustained. 
Thus,  in  a  late  case,  where  a  creditor  deposited  ex- 

{d)  Burn  v.  Burn,  3  Ves.  573. 

(e)  Gray  v.  Chiswell,  9  Ves.  118.  In  a  creditor's  suit  for  adminis- 
tering the  assets  of  B,  a  joint  creditor  of  A  &  B  has  been  permitted  to 
prove,  it  appearing  that  A  had  become  a  bankrupt,  and  that  there  were 
no  joint  assets.     Cowell  v.  Sike,  2  Russ.  Ch.  C.  191. 


(1)  See  Bell  v.  Neivman,  5  Serg.  &  Ravvle,  78,  Speny^s  Estate,  1 
Ashm.  Rep.  347,  and  JVoddrop  v.  Price's  Ex.  3  Desaus.  Cha.  Rep. 
203.  Hall  V.  Hall,  2  McCord's  Cha.  Rep.  302,  McCulloch  v.  Da- 
shieWs  Adm.  1  Har.  &;  Gill.  96,  for  the  rule  in  Pennsylvania,  South 
Carolina,  and  Maryland,  of  distribution  of  insolvent  estates  in  the 
hands  of  personal  representaves. 


360 


THE    CONSEQUENCES    OF    A 


chequer  bills  with  a  partnership  firm,  without  giving  any 
power  or  authority  to  sell  or  dispose  of  them,  but  they 
were  afterwards  sold,  and  the  produce  apphed  to  the  use 
of  the  partnership,  it  was  decided  that  the  estate  of  a 
deceased  partner,  in  whose  lifetime  the  sale  took  place, 
was  responsible  in  respect  of  this  breach  of  trust,  not- 
withstanding he  was  not  actually  privy  to  the  sale.(/) 
So  where  the  customer  of  a  banking  firm  (knowing  that 
an  individual  partner  took  into  his  own  hands,  for  the 
convenience  and  as  the  act  of  the  firm,  the  general  ma- 
nagement both  of  stock  in  the  public  funds  belonging  to 
the  house,  and  of  that  intrusted  to  it  by  their  customers,) 
appointed  them  his  agents  to  purchase  stock  on  his 
[  *361  ]  ^'account,  and  to  receive  the  accruing  dividends ; 
and  some  stock  being  bought,  it  was  invested  in 
the  name  of  the  individual  partner  who  afterwards,  but 
in  the  lifetime  of  a  deceased  partner,  sold  it,  and  applied 
the  proceeds  to  the  use  of  the  partnership ;  it  was  held 
that  the  customer  was  entitled,  as  against  the  estate  of 
the  deceased,  to  consider  it  as  a  debt,  or  to  have  the 
stock  specifically  replaced  at  his  option.(^)  And  where 
stock  has  been  transferred,  as  a  collateral  security,  to  a 
partnership,  under  an  express  agreement,  that  no  part  of 
the  stock  should  be  sold  without  notice ;  although  the 
account  of  the  party  who  made  such  transfer  may  be 
considerably  overdrawn,  it  will  be  a  fraud  to  sell  the 
stock,  without  notice,  and  apply  the  produce  to  the  use 
of  the  partnership ;  continuing  to  treat  the  stock  as  un- 
.  sold,  and  giving  the  transferer  credit  for  the  dividends : 
and,  supposing  this  fraud  to  have  been  practised  in  the 
lifetime  of  a  partner,  who  dies  before  its  discovery,  his 
estate  (whether  he  was  or  was  not  privy  to  the  transac- 
tion) remains  liable  to  replace,  specifically,  the  whole 
stock  sold,  and  not  merely  the  balance  due,  after  giving 
credit  to  the  partnership  for  the  sums  overdrawn.(//!) 
So,  where  it  has  been  the  habit  of  partners  in  a  banking 
house  to  take  transfers  of  stock,  as  a  security  for  ad- 
vances made  to  their  customers  under  an  obligation  that 


(/)  Clayton's  case,  1  Meriv.  575. 
(g)  Baring's  case,  1  Meriv.  611. 


(h)  Ward's  case,  ibid.  624. 


DISSOLUTION  BY  DEATH.  361 

the  stock  so  taken  should  remain  in  their  hands  as  a 
security  only,  not  to  be  dealt  with  except  by  the  autho- 
rity, of  the  person  making  each  several  transfer ;  if  the 
banking  house,  in  fraud  of  the  agreement,  sell  out  the 
stock,  and  apply  the  produce  to  partnership  purposes,  the 
assets  of  a  deceased  partner  will  be  liable,  so  far  as  the 
fraudulent  conversion  took  place  during  his  lifetime.     If 
part  of  the  stock  so  sold  has  subsequently  been  replaced, 
this  will  be  esteemed  such  an  appropriation  as,  upon  the 
bankruptcy  of  the  partnership,  will  entitle  the  party  or 
parties  who  made  the  transfer  to  a  specific  lieii  on  the 
stock  repurchased,  which  will  be  deemed  to  have  a  sort 
of  "  ear  mark"  in  their  favour ;  and  they  will,  of  course, 
be  entitled  to  prove  under  the  commission  for  the  residue 
of  their  debts,  as  well  as  to  go  against  the  estate  of  a 
deceased  partner  of  the  banking  house  to  make  good 
any  deficit.(i)     But  the  liability  of  the  estate  of  a  de- 
ceased partner  is,  of  necessity,  confined  to  those  claims 
alone  which  were  consummate  at  the  time  of  his  death ; 
for  it  would  be  the  reverse  of  equity  to  throw 
upon  it  the  burthen  *of  paying  debts,  to  the  [  *362  ] 
contracting  of  which  the  deceased  could  not 
have  been  instrumental,  and  from  which  his  estate  could 
not  possibly  have  derived  any  benefit.     Besides,  the 
death  of  a  partner  of  itself  works  a  dissolution  of  the 
partnership  •,{k)  and  there  is  the  high  authority  of  Lord 
Eldon  for  saying,  that  notice  of  a  dissolution  so  effected, 
is  not  necessary  to  protect  the  estate  of  the  deceased 
from  future  liability. (/)     Therefore,  where  bills  were  de- 
posited by  a  customer  in  the  hands  of  his  bankers,  who, 
in  breach  of  their  trust,  but  after  the  death  of  one  of  the 
firm,  sold  them,  it  was  determined  that  the  estate  of  the 
deceased  partner  was  not  answerable,  although  the  cus- 
tomer was  ignorant  of  the  fact  of  his  death.(m)     And 

{i)  VuUiamy  v.  Noble,  3  Meriv.  619. 

\k)  Crawshay  v.  Maule,  1  Swanst.  509.  Gillespie  v.  Hamilton,  3 
Madd.  251. 

(/)  ViiUiamy  v.  Noble,  3  Meriv.  614.-  On  this  ground  a  court  of 
equity  will  not  restrain  the  surviving  partners  from  using  the  name  of 
a  deceased  partner  in  the  firm  of  the  trade.  Webster  v.  Webster,  3 
Swanst.  490.  n. 

im)  Brice's  case,  1  Meriv.  G20. 


•A 


362  THE  CONSEQ,UENCES  OF  A 

where  the  bills  have  been  lodged  with  a  banking  house, 
part  of  which  bills  have  been  fraudulently  sold  before  the 
decease  of  one  of  the  partners,  and  part  after  his  death ; 
the  assets  of  the  deceased  partner  are  answerable  only 
for  such  part  of  the  produce  of  the  bills  as  were  impro- 
perly disposed  of  in  his  lifetime.(n)  And  notwithstand- 
ing joint  creditors  have  an  equitable  right  against  the 
estate  of  a  deceased  partner  for  debts  due  from  the  firm 
at  the  time  of  his  death,  yet  they  may,  by  their  conduct, 
manifest  an  intention  of  transferring  the  sole  liability  to 
the  survivors.  What  shall  be  considered  a  waiver  of  this 
right,  or  in  other  words,  what  sort  of  dealing  with  the 
survivors  shall,  in  such  cases,  operate  the  discharge  of 
the  estate  of  a  deceased  partner,  appears  to  be  unsettled 
by  decision.  Lord  Elclon  has  laid  down  generally  that 
the  right  standing  only  upon  equitable  grounds,  if  the 
dealing  of  a  creditor  with  the  surviving  partners  has 
been  such  as  to  make  it  equitable  that  he  should  go 
against  that  fund,  he  would  not  upon  general  rules  and 
principles  be  entitled  to  the  benefit  of  such  a  demand.(o) 
But  to  oust  the  prima  facie  claim  which  the  joint  credi- 
tors have  upon  the  assets,  it  must  be  shown  that  their 
subsequent  dealings  are  of  such  a  nature  as  to  shift  the 
equitable  obligation  to  pay  from  the  estate  of  the  deceased 
partner ;  such  as  clearly  and  unequivocally  demonstrate 

the  intention  of  the  creditors  to  give  credit  to  the 
[  *363  ]  surviving  ^partners  exclusively.    A  continuation 

by  the  creditor  of  his  dealing  with  the  surviving 
partners,  if  unattended  by  circumstances  from  which  his 
relinquishment  of  all  right  against  the  assets  of  the  de- 
ceased can  be  inferred,  will  not  alone  produce  the  effect 
of  exoneration.  For  instance,  in  the  case  of  a  banking 
concern  (between  which  and  any  other  partnership  there 
is  no  difference  in  principle  as  to  the  equity  of  the  cre- 
ditor against  the  deceased  partner's  estate),  a  creditor, 
after  the  death  of  one  partner,  does  not,  by  leaving 
money  in  the  hands  of  the  survivors,  raise  a  new  con- 
tract, nor  relinquish  any  benefit  resulting  to  him  from 


{n)  Houlton's  case,  1  Meriv.  616. 
(o)  Ex  parte  Kendal,  17  Ves.  526. 


DISSOLUTION  BY  DEATH.  363 

his  old  security.  If,  therefore,  he  continue  to  draw 
drafts  upon  the  survivors,  and  act  upon  their  acknow- 
ledged liability  to  the  extent  that  his  convenience  and 
occasions  may  happen  to  require,  he  does  not  thereby 
release  the  estate  of  the  deceased ;  for,  although,  by  the 
act  of  drawing  upon  them,  he  affirmatively  recognises 
the  survivors  as  his  debtors,  yet  that  affirmative  act  does 
not  negatively  show  that  all  others  who  originally  con- 
tracted liability  are  exonerated.(^7)  (1)  So  if  the  credi- 
tor continue  to  deal  with  the  surviving-  partners,  by  both 
drawing  out  and  paying  in  money,  whereby  the  debt 
due  to  him  is  iricreased,  but  never  at  any  time  reduced, 
this  does  not  amount  to  an  acquittal  of  his  claim  upon 
the  deceased  partner.(</)  And  in  a  case  in  which  one 
of  three  members  of  a  firm  of  bankers  died,  and  after 
his  death  a  new  partnership  was  formed  by  the  surviving 
partners  and  other  persons ;  and  creditors  of  the  old 
partnership,  for  money  paid  into  the  bank  upon  notes 
payable  with  interest,  received  interest  upon  such  notes 
from  the  new  partnership,  who  re-issued  several  of  the 
common  cash  notes  of  the  old  partnership,  it  was  deter- 
mined that  the  creditors  of  the  old  partnership  might, 
upon  the  bankruptcy  of  the  new  firm,  proceed  against 
the  assets  of  the  deceased  partner.(r)  And  acts  done 
by  a  creditor,  subsequent  to  the  death  of  one  partner, 
from  which  an  inference  might  be  drawn  of  his  having 
adopted  the  surviving  partners  as  his  debtors,  will  not 
have  the  effect  of  exonerating  the  estate  of  the 
deceased  from  liability  for  a  debt  *previously  [*364] 
incurred  to  that  creditor,  by  a  breach  of  trust 

ip)  Sleech's  case,  1  Meriv.  563.     Gough  v.  Davies,  4  Price,  200. 

(q)  Palmer's  case,  ibid.  623.  In  this  case  distinct  accounts  must 
have  been  kept,  and  the  money  paid  by  the  survivors  must  in  their  ac- 
count have  been  appropriated  in  payment  of  their  debt,  otherwise  the 
decision  is  not  perfectly  reconcileable  with  that  in  Clayton's  case,  post. 
See  the  observation  of  Best,  J.,  in  Simson  v.  Ingham,  2  B.  &;C.  72. 

(r)  Daniel  t'.  Cross,  3  Ves.  277.  See  also  Jones  v.  Sutton,  cited 
ibid.  278. 


(1)  Hamersley  v.  Lambert  ct  al.  2  Johns.  Cha.  Rep.  508.     See  Orr 
V.  Chase,  1  Meriv.  Rep.  729,  App. 


364 


THE    CONSEQUENCES    OP    A 


committed  by  the  firm,  of  which  the  creditor  was  at  the 
time  ignorant.(5)  But  if  the  creditor  of  a  banking  firm, 
after  the  death  of  one  of  the  partners,  continue  to  deal 
as  usual  with  the  survivors ;  and  before  he  pays  in  any 
sums  of  money  to  his  account,  draws  sums  out  of  the 
house,  and  the  balance,  although  it  varies  from  time  to 
time,  is  upon  the  whole  increased  by  such  subsequent 
dealings;  yet  the  subsequent  payments  by  the  surviving 
partners  will,  where  the  accounts  both  posterior  and 
anterior  to  the  death  of  the  partner  are  blended,  be 
taken  in  reduction  of  the  balance  due  at  the  death  of 
that  partner,  and  his  estate  be  held  discharged  pro  tanto  ; 
because  the  balance  for  which  alone  the  deceased  part- 
ner was  liable,  being  once  diminished  to  any  given 
amount,  it  cannot,  as  against  his  estate,  be  again  aug- 
mented by  subsequent  payments  made,  or  subsequent 
credit  given  to  the  surviving  partners.(^)  For  it  is  a 
general  rule,  that  where  one  of  several  partners  dies,  and 
the  partnership  is  in  debt,  and  the  surviving  partners 
continue  their  dealings  with  a  particular  creditor,  and 
the  latter  joins  the  transactions  of  the  old  and  the  new 
firm  in  one  entire  account,  then  the  payments  made, 
from  time  to  time,  by  the  surviving  partners,  must  be 
applied  to  the  old  debt.(^f)  But  this  rule  applies  only 
where  both  accounts  are  blended,  and  does  not  deprive 
the  creditor  of  his  legal  right  of  applying,  to  the  credit 
of  the  old,  or  of  a  new  account,  payments  made  to  him, 
without  any  application  of  them  by  the  surviving  part- 
ners. Indeed,  if  the  general  rule  were  invincible,  it 
might,  where  the  deceased  is  indebted  to  the  partner- 
ship, be  productive  of  this  hardship  to  the  surviving 
partners,  that  the  old  debt  would  be  satisfied  by  their 
money.  The  creditor,  therefore,  where  the  surviving 
partners  do  not  make  a  specific  application  at  the  time 
of  payment,  has  the  right  of  making  a  rest,  and  of  open- 
ing a  new  account,  to  which  he  may  ascribe  payments 
made  without  appropriation  after  the  death  of  the  part- 

Uy  Clayton's  case,  1  Meriv.  575.  (/)  S.  C.  Ibid.  585. 

{ii)  Simson  v.  Ingham,  2  B.  &;  C,  72.     Simson  v.  Cooke,  1  Bingh. 
452.     Williams  v.  Rawlinson,  3  Bingh.  76. 


DISSOLUTION    BY    DEATH.  364 

ner.  This  was  decided  in  a  late  case,(?;)  in  which  a  bond 
was  given  by  country  bankers  to  the  several  persons 
constituting  the  firm  of  a  London  banking  house,  con- 
ditioned for  remitting  money  to  provide  for  bills, 
and  for  *the  repayment  of  such  sums,  as  the  [*365] 
London  bankers  might  advance,  on  account  of 
persons  constituting  the  firm  of  the  country  banking 
house  or  any  of  them,  associated  or  not  with  other  per- 
sons.    One  of  the  partners  in  the  country  bank  died,  a 
considerable    balance    being  then  due   to    the  London 
bankers.     It  was  the  course  of  business  between  the  two 
houses,  for  the  London  bankers  to  send  to  the  country 
bankers  monthly  accounts  of  receipts  and  payments.  In 
the  month  following  the  death  of  the  deceased  partner, 
the  London  bankers  received  sums,  in  payment,  more 
than  sufficient  to  discharge  the  balance  then  due ;  but, 
during  the  same  time,  they  advanced  money  on  account 
of  the  country  bankers  to  an  equal  amount.     In  the  first 
instance,  the  London  bankers  entered  in  their  books  all 
receipts  and  payments  made,  after  the  death  of  the  de- 
ceased partner,  to  the  account  of  the  old  firm,  but  they 
did  not  transmit  any  account  to  the  country  bankers 
until  two  months  after  the  death  of  the  deceased  part- 
ner, and  then  they  transmitted  two  distinct  accounts  : 
one  the  account  of  the  old  firm,  made  up  to  the  day  of 
the  death  of  the  partner;  and  another,  a  new  account, 
containing  all  payments  and  receipts  subsequent  to  that 
time.     And  it  was  held,  that  the  entries  in  the  books  of 
the  London  bankers  did  not  amount  to  a  complete  appro- 
priation by  them,  of  the  several  payments  to   the  old 
account,  such  appropriation  not  being  complete  until  it 
was  communicated  to  the  party  to  be  aflfected  by  it ; 
and,  therefore,  that  the  London  bankers,  notwithstanding 
those  entries,  were  entitled  to  apply  the  payments  re- 
ceived, subsequently  to  the  death  of  the  deceased  partner, 
to  the  debt  of  the  new  firm.     With  respect  to  the  time 
when    the   creditors    should   prosecute    their   demands 
against  the  surviving  partners,  in  order  to  retain  their 
right  of  resorting  to  the  estate  of  a  deceased  partner,  no 

(u)  Simson  v.  Ingham,  supra. 
60 


365  THE  CONSEQUENCES    OF    A 

rule  of  convenience  exists  which  requires  them  to  do  it 
within  any  assigned  or  arbitrary  hmitation.  If  such  a 
rule  were  established,  it  is  doubtful  whether  the  estate 
of  a  deceased  partner  would,  upon  the  whole,  be  much 
benefited  by  it;  for  if  creditors  were  told,  that  the  only 
way  in  which  they  could  preserve  their  recourse  against 
the  estate  of  a  deceased  partner,  was  by  using  all  possi- 
ble diligence  to  compel  an  immediate  payment,  by  the 
surviving  partners,  of  the  whole  of  their  balances,  there 
are  very  few  houses  which  could  stand  such  a  sudden 
and  concurrent  demand  as  that  would  necessarily  bring 
r  *'^CC  1  "P^"  them.  A  firm  might  be  reduced  to  a  state 
•-  ^  *of  bankruptcy,  which,  in  the  ordinary  course 

of  business,  would  have  been  able  to  fulfil  all  its  engage- 
ments; and  a  demand  would  be  brought  upon  the  estate 
of  a  deceased  partner,  from  which  it  might  otherwise 
have  wholly  escaped.  Expediency,  therefore,  being  taken 
into  the  consideration,  it  is  impossible  to  see  what  bene- 
ficial purpose  would  be  answered  by  compelling  credi- 
tors to  the  rigorous  course  of  exacting  payment  within 
a  definite  period,  as  the  condition  upon  which  alone  the 
hold  which  equity  gives  them  on  the  estate  of  a  deceased 
partner  could  be  retained. (z^;)  It  has  therefore  been  held 
that  the  equity  of  a  creditor  against  the  estate  of  a  de- 
ceased partner  is  not  barred  by  eight  months  nonclaim, 
and  an  intermediate  payment  by  the  surviving  partners 
of  part  of  the  debt.(a')  (1)  The  creditors  of  the  surviving 
partners,  if  they  have  themselves  no  demand  against 
the  separate  estate  of  the  deceased  partner,  cannot  com- 
pel the  joint  creditors  of  the  survivors  (being  also  legal 
creditors  of  the  firm,  as  originally  constituted,)  to  go 

(w)  Sleech's  case,  1  Meriv.  569. 

{x)  Id.  ibid.    See  also  Lane  v.  Williams,  2  Vern.  277,  292.    Daniel 
V.  Cross,  3  Ves.  277. 


(1)  See  Hamp.rsley  v.  Lambert  et  al.  2  Johns.  Cha.  Rep.  508,  and 
observe  the  period  of  nonclaim,  and  intermediate  payment,  in  that  case» 
Chancellor  Kent  observed,  when  giving  judgment,  "that  neither  delay, 
nor  lapse  of  time,  nor  dealing  with  the  survivor,  nor  calling  for  and  re- 
ceiving part  of  the  debt  from  the  survivor,  amounted  to  a  waiver,  or 
bar,  of  the  claim  upon  the  assets  of  the  deceased."  See  also  Sale  v. 
Dichman's  Ex.  3  Leigh's  Rep.  548. 


DISSOLUTION    BY    DEATH.  366 

against  the  separate  estate  of  the  deceased ;  unless  the 
survivors,  if  they  were  solvent,  could  turn  those  credi- 
tors, suing  them,  against  the  estate  of  the  deceased. 
The  equity  of  the  creditors,  in  such  cases,  is  worked  out 
through  the  equities  which  the  partners  have  as  between 
themselves.(y)  Where,  on  a  dissolution  of  partnership, 
a  creditor  of  the  firm  gave  his  security  to  the  outgoing 
partner,  in  satisfaction  of  a  debt  due  to  the  outgoing 
partner  from  the  continuing  partner ;  it  was  agreed  be- 
tween the  parties  that  whatever  sums  should  become 
due  from  the  outgoing  to  the  continuing  partner  for 
business  to  be  done  on  his  account,  should  be  applied  in 
liquidation  of  the  above  debt ;  the  outgoing  partner  died, 
and  his  executors  recovered  against  the  joint  creditor 
on  his  security;  the  continuing  partner  who  survived 
became  insolvent,  and  the  creditor  filed  a  bill  against  the 
executors  of  the  deceased  and  the  survivor ;  and  it  was 
ordered  that  the  creditor  should  have  satisfaction  from 
the  assets  of  the  deceased,  and  that  the  money  due  from 
the  deceased  to  the  surviving  partner  for  work  done 
since  the  dissolution,  should  be  set  off  against  the  debt 
originally  due  from  the  survivor  to  the  deceased  on  the 
dissolution.(z) 

*According  to  the  principles  of  the  common  [  *367  ] 
law,  the  creditors  of  a  deceased  partner  or  trader 
had  no  remedy  against  his  real  assets,  which  by  his 
death  descended  to  his  heir.  Even  creditors  by  bond 
or  other  specialty,  in  which  the  heir  was  not  expressly 
bound,  could  not  enforce  their  claims  against  the  assets 
which  the  heir  might  take  by  descent  in  fee  simple ;  for 
as  Lord  Coke  has  observed,(a)  "  the  executor  doth  more 
actually  represent  the  person  of  the  testator,  than  the 
heir  doth  the  person  of  the  ancestor.  For  if  a  man 
bindeth  himself,  his  executors  are  bound,  though  they  be 
not  named ;  but  so  it  is  not  of  the  heir."  And  creditors 
by  specialties  which  affected  the  heir,  provided  he  had 
assets  by  descent,  were,  before  the  statute  3  &  4  Wm. 
and  Mary,  c.  14,  defrauded  of  their  securities,  if  the 

(y)  Ex  parte  Kendal,  17  Ves.  521.     Ex  parte  Yallop,  15  Ves.  69. 
\z)  Cheetham  v.  Crom,  1  McClelland  &  Yoiuige,  307. 
(a)  Co.  Liu.  209.  (a.) 


367  THE  CONSEqUENCES  OF  A 

debtor  had  devised  his  real  estates;  because  the  remedies 
which  they  had  against  the  heir  of  the  debtor  could  not 
be  enforced  against  his  devisee.(6)  However,  the  law 
in  this  respect  is  much  altered  by  a  modern  act  of  par- 
liament,(c)  which  enacts,  "  that  when  any  person,  being 
at  the  time  of  his  death  a  trader,  within  the  true  intent 
and  meaning  of  the  laws  relating  to  bankrupts,  shall  die 
seised  of  or  entitled  to  any  estate  or  interest  in  lands, 
tenements,  hereditaments,  or  other  real  estate,  which  he 
shall  not  by  his  last  will  have  charged  with  or  devised 
subject  to  or  for  the  payment  of  his  debts;  and  which, 
before  the  passing  of  this  act,  would  have  been  assets 
for  the  payment  of  his  debts  due  on  any  specialty  in 
which  the  heirs  were  bound ;  the  same  shall  be  assets  to 
be  administered  in  courts  of  equity  for  the  payment  of 
all  the  just  debts  of  such  person,  as  well  debts  due  on 
simple  contract  as  on  specialty ;  and  that  the  heir  or 
heirs  at  law,  devisee  or  devisees  of  such  debtor,  shall  be 
liable  to  all  the  same  suits  in  equity,  at  the  suit  of  any 
of  the  creditors  of  such  debtor,  whether  creditors  by 
simple  contract  or  by  specialty,  as  they  were  before  the 
the  passing  of  this  act  liable  to,  at  the  suit  of  creditors 
by  specialty,  in  which  the  heirs  were  bound;  provided 
always,  that  in  the  administration  of  assets  by  courts  of 
equity,  under  and  by  virtue  of  this  act,  all  creditors  by 
specialty,  in  which  the  heirs  are  bound,  shall  be  paid  the 
full  amount  of  the  debts  due  to  them,  before  any  of  the 
creditors  by  simple  contract  or  by  specialty,  in  which 
the  heirs  are  not  bound,  shall  be  paid  any  part  of  their 
demands."     To  entitle  joint  creditors  to  proceed  under 

this  act  of  parliament  against  the  real  assets  of 
[  *36S  ]  a  deceased  ^partner,  it  is  necessary  that  the 

partnership  or  the  trade  should  have  continued 
until  the  time  of  his  death ;  since,  if,  before  that  event, 
he  ceases  to  be  a  trader,  the  provisions  of  the  statute  do 
not  apply.(rf)  But  if  a  person  labouring  under  a  mortal 
disease,  were  to  quit  his  trade,  for  the  purpose  of  ex- 
onerating his  estate,  and  letting  it  descend  to  his  heir,  it 

(6)  2  Black,  Com.  378.  (c)  47  Geo.  3.  Sess.  2.  c.  74.  s.  1. 

(d)  Keene  v.  Riley,  3  Meriv.   346.      See  also  Carter  v.  Dean,  1 
Swanst.  64. 


DISSOLUTION    BY    DEATH.  368 

would  be  difficult  to  avoid  the  imputation  of  such  fraud 
as  would  frustrate  the  design.(e)  Where  the  heir  at  law 
is  under  age,  it  seems  that  a  sale  of  the  estate  cannot  be 
decreed  during  his  minority,  but  must  be  postponed  until 
he  is  of  full  age.(/) 

Before  concluding  this  treatise,  we  will  advert  to  the 
cases  in  which  courts  of  equity  have  assumed  a  juris- 
diction to  reform  instruments,  which,  either  by  the  fraud 
or  mistake  of  the  drawer,  admit  of  a  construction  in- 
consistent with  the  true  agreement  of  the  parties.  For 
example,  relief  has  been  granted  upon  a  joint  bond  or 
security,  as  if  it  had  been  joint  and  several,  against  the 
representatives  of  the  party  first  dying ;  the  intention  (as 
Avhere  credit  had  been  previously  given  to  the  different 
persons  who  entered  into  the  obligation)  being  gathered 
from  the  cirumstances  of  the  case,  and  it  being  con- 
sidered that  the  bond  was  made  joint,  instead  of  joint 
and  several,  by  mistake.  It  is  true  Lord  Eldon  has  ex- 
pressed some  surprise  at  the  introduction  of  such  an 
equity,  thinking  that  where  parties  have  entered  into  a 
joint,  instead  of  a  joint  and  several  contract,  a  court  of 
equity  ought  to  leave  it  to  its  fate  as  a  joint  contract ; 
but  so  far  from  intimating  a  doubt  of  the  existence  of 
the  doctrine,  his  lordship  has  expressly  admitted  it  and 
acted  upon  it.(^)  A  court  of  equity,  proceeding  upon 
the  intention,  would,  indeed,  by  decree  in  the  lifetime  of 
the  deceased  have  rectified  the  security,  so  as  to  have 
made  it  conformable  to  the  intention  of  the  parties ;  it 
therefore  places  the  creditor  in  no  better  situation  than 
he  would  have  been  in  if  he  had  sued  in  the  lifetime  of 
the  debtor,  by  holding,  after  the  death  of  the  latter, 
that  the  security  shall  be  regarded  according  to  the 
form  in  which,  it  must  be  presumed,  it  was  ori- 
ginally intended  to  be  framed.(A)  In  fact  a  *court  [  *3G9  ] 
of  equity   ascribes  to  the  securities  no  other 

(e)  Hitchon  v.  Bennett,  4  Madd.  183. 

(f)  Lechmere  v.  Brasier,  2  Jac.  &,  Walk.  290.  See  Pott  v.  Galini. 
1  Sim.  &  Stu.  209. 

(g)  Ex  parte  Kendall,  17  Ves.  519.  Gray  v.  Chiswell,  9  Ves.  125. 
See  also  Ball  v.  Storie,  1  Sim.  &  Stu.  210.  Ex  parte  Halket,  19  Ves. 
474. 

(A)  Gray  v.  Chiswell,  supra.     Underbill  v.  Horwood,  10  Ves.  227. 


369  THE    CONSEq.UENCES    OF    A 

effect  than  it  was  the  purpose  of  the  parties  themselves 
to  have  given  to  them.  Thus,  where  one  of  two  per- 
sons to  whom  a  joint  loan  was  made,  by  mistake  filled 
up  the  bond  given  to  secure  it  as  a  joint,  instead  of 
a  joint  and  several  bond,  Lord  Hardwicke,  on  the 
ground  of  the  mistake,  relieved  the  obligee  by  effec- 
tuating his  claim  against  the  assets  of  a  deceased  obli- 
gor.(i)  So,  where  a  partnership  firm,  indebted  on  simple 
contract,  intended  that  a  bond  should  be  given  for  the 
debt  by  which  each  should  be  separately  bound  ;  and,  in 
pursuance  of  such  intention,  a  bond  was,  through  mis- 
take and  ignorance  of  the  parties,  filled  up  as  a  joint 
bond,  and  was  executed  only  by  the  senior  partner  in  the 
name  of  the  partnership  firm,  but  with  the  privity  of  the 
other  partners  who  were  present  at  the  execution ;  the 
creditor  was  held  entitled,  as  against  simple  contract 
creditors,  to  come  in  as  a  specialty  creditor  upon  the 
estate  of  any  of  the  partners.(A:)  And  in  all  cases  in 
which  a  security  is,  by  mistake,  executed  as  a  joint  in- 
stead of  a  separate  security,  or  as  a  separate  instead  of 
a  joint  security,  it  does  not  affect  the  equitable  right  of 
the  creditor  to  consider  his  debt  separate  or  joint,  ac- 
cording to  the  real  intention  of  the  parties.(/)(l)  Relief 
of  this  nature  has  also  frequently  been  granted  against 
the  estate  of  a  deceased  partner,  where  a  joint  security 
only  has  been  given  for  a  partnership  debt  contracted  in 
the  way  of  trade,  the  legal  remedy  upon  which,  by  the 
death  of  one,  survived  against  the  other  alone,  the 
ground  of  the  equity  being,  that  qua  partners  they  were 
each  of  them  liable  for  the  whole  debt ;  and  therefore, 
as  a  several  antecedent  liability  existed,  independently 
of  the  instrument  by  which  the  debt  was  secured,  the 
right  of  the  creditor  to  enforce  it  severally  ought  not  to 
be  impaired  by  the  circumstance  of  a  joint  security  only 

(i)  Simpson  v.  Vaughan,  2  Atk.  31.  See  also  Primrose  v.  Brom- 
ley, 1  Atk.  90.  {k)  Burn  v.  Burn,  3  Ves.  573. 

(l)  Thomas  v.  Fraser,  ib.  399.  In  re  Bate,  ib.  400.  n.  In  re  Free- 
man, ib. 


(I)  See  what  is  said  by  Gibson,  J.,  Bell  v.  Newman,  5  Serg.  & 
Rawle,  90. 


DISSOLUTION    BY    DEATH.  369 

having  been  taken.     This  species  of  reHef  was  first  ad- 
ministered in  an  early  case  ;(m)  in  which  one  partner 
had  given  a  joint  promissory  note  for  money  borrowed 
by  him  on  the  joint  account,  and  the  other  partner  dy- 
ing, the  holder  of  the  note  brought  a  bill  to  have  satis- 
fiction  out  of  the  estate  of  the  deceased,  and   it  was 
decreed  to  be  proper  in  equity  to  follow  his  es- 
tate for  satisfaction,  becawse  the  note  *was  given  [  *370  ] 
for  a  partnership  debt.     And  in  a  case  before 
Lord  Hardwickc,  in  which   similar  relief  was   prayed, 
though  he  doubted  a  little  at  first,  whether  it  sufliciently 
appeared  that  the  security  was  intended  to  be  separate 
as  well  as  joint,  yet  when  it  was  ascertained  that  the 
money  had  been  borrowed  in  the  course  of  a  partnership 
dealing,  he  thought  the  equity  was   perfectly  clear.(7i) 
So,    in   Jacomb  v.   Harwood,(o)  it   is   evident   Sir  John 
Strange  was  of  opinion,  that  the  estates  both  of  the  de- 
ceased and  the   surviving  partners  were  liable   to  the 
payment  of  a  joint  note,  though  it  was  not  necessary  to 
resort  to  that  equity  in  the  particular  case,  inasmuch  as 
the  surviving  partner,  as  the  executor  of  the  deceased 
partner,  had  executed  a  mortgage  to  secure  the  debt, 
which  it  was  held  to  be  within  his  competency  to  do.{p) 
The  same    principle  had    been  before  acted    upon    by 
Lord  Chancellor  Parker,  in  a  case  in  which  a  creditor 
held  the  joint  bond  of  two  partners,  and  upon  a  disso- 
lution of  the  partnership,  it  was  agreed  that  all  the  joint 
bonds  should  be  discharged  by  one  of  the  partners,  to 
whom  afterwards  an  application  for  payment  was  made 
by  the  creditor,  when  it  was  stipulated  between  them 
that  the  interest  upon  the  bond  should  be  increased,  and 
some  of  the  increased  interest  was  in  consequence  paid. 
The  latter  partner  having  subsequently  become  bank- 
rupt, it  was  held,  that  the  creditor  had  an  equitable  claim 
.  upon  the  assets  of  the  other  partner  who  had  died,  not- 
withstanding he  had  proved  his  debt,  and  received  a 
dividend,  under  the  commission  against  the  bankrupt 

(m)  Lane  v.  Williams,  2  Vern.  277,  292. 

(n)  Bishop  v.  Church,  2  Ves.  sen.  100,  371.     S.  C.  reported  on  a 
different  point  in  3  Aik.  691. 

(o)  2  Ves.  sen.  365.         (p)  See  VuUiamy  v.  Noble,  3  Meriv.  614. 


370       THE  CONSEQUENCES  OF  A  DISSOLUTION  BY  DEATH. 

partner.(9^)  So,  where  a  person  kept  a  cash  account 
with  three  merchants  who  were  in  partnership,  and  they 
becoming  indebted  to  him,  a  joint  bond,  signed  by  one 
partner  only  in  the  name  of  the  partnership,  was  dehver- 
ed  for  the  balance  due,  after  which  one  partner  with- 
drew from  the  partnership,  and  another  died,  of  which 
events,  and  of  the  introduction  of  new  partners  in  their 
places  respectively,  the  obligee  had  express  notice  sent 
to  him ;  but  he  nevertheless  continued  to  correspond 
with  the  new  firm,  in  respect  of  the  cash  balance  in  their 
hands ;  Sir  Thomas  Plumcr  declared  that  the  bond, 
though  in  its  form  joint,  must  in  equity  be  taken  as  the 

joint  and  several  bond  of  all  the  partners,  and, 
[  *371  ]  consequently  that   the   representatives  *of  the 

deceased  partner  were  liable  to  make  good  the 
money  due  on  it.(r)  But  every  joint  covenant  is  not  to 
be  considered  in  equity  as  the  several  covenant  of  each 
of  the  covenantors  ;  for  where  it  is  purely  matter  of  ar- 
bitrary convention  growing  out  of  no  antecedent  liability 
in  all  or  any  of  the  covenantors  to  do  what  they  have 
thereby  undertaken,  and  it  is  not  pretended  that  there 
was  any  mistake  in  drawing  the  deed,  or  that  there  was 
any  agreement  for  a  covenant  of  a  different  sort,  the 
extent  of  the  covenant  can  be  measured  only  by  the 
w^ords  in  which  it  is  conceived.  Therefore,  where  the 
executor  of  a  deceased  partner,  instead  of  winding  up 
the  partnership  concern,  and  dividing  what  might  re- 
main after  satisfying  all  claims  upon  it,  made  an  ar- 
rangement with  the  surviving  partners,  by  which  he  was 
immediately  to  receive  what  was  estimated  to  be  his  tes- 
tator's share  of  the  joint  estate,  he  releasing  all  interest 
in  the  residue  to  the  other  partners,  from  whom  he  ob- 
tained a  joint  covenant  of  indemnity  against  any  claims 
upon  the  firm ;  it  was  determined  that  as  no  equity  ex- 
isted which  could  have  entitled  him  to  demand  from  the 
other  partners  such  an  indemnity,  there  was  not  a 
ground  on  which  any  other  than  its  legal  operation  and 
eflfect  could  be  ascribed  to  the  covenant.(s) 

(q)  Heath  v.  Perceval,  I  P.  VVnis.  682.  S.  C.  1  Stra.  303. 
(r)  Orr  v.  Chase,  cited  1  Meriv.  559,  and  reported  ibid.  729. 
(s)  Sumner  i'.  Powell,  2  Meriv.  30. 


(375) 


APPENDIX. 


No.  I. 

DEED  OF  PARTNERSHIP  between  Three  Persons  as 
Auctioneers  and  Surveyors,  of  whom  Two  had  previously 
been  engaged  in  the  same  Business,  and  the  Third  had 
acted  as  Clerk  to  one  of  them,  with  ordinary  Clauses. 

This  Indenture,  made,  &c.  between  A  of,  &c.  of  the  first  part ; 
B  of,  &c.  of  the  second  part ;  and  C  of,  &c.,  now  clerk  and  assist- 
ant to  the  said  A,  of  the  third  part :  whereas,  each  of  them  the 
said  A  and  B  has,  for  several  years  last  past,  and  up  to  the  day  of 
the  date  of  these  presents,  carried  on,  for  his  own  benefit  and  on 
his  separate  account,  the  business  of  surveyor,  auctioneer,  estate 
agent,  and  appraiser,  and  it  has  been  agreed,  that  the  business  so 
carried  on  by  them  respectively  as  aforesaid  shall,  from  the  day 
of  the  date  hereof,  be  carried  on  by  the  said  A,  B,  and  C  in  co- 
partnership, for  the  period  upon  the  terms,  and  under  and  subject 
to  the  agreements,  provisions,  and  stipulations  hereinafter  con- 
tained :  Now  this  indenture  witnesseth,  that  in  pursuance  of  the 
said  agreement,  and  in  consideration  of  the  mutual  trust  and  con- 
fidence which  the  said  A,  B,  and  C  hav6  and  repose  in  each  other, 
each  and  every  of  them  the  said  A,'B,  and  C  doth  hereby  for 
himself,  his  heirs,  executors,  and  administrators,  covenant,  pro- 
mise, and  agree  with  and  to  the  other  and  others  of  them,  and  his 
and  their  respective  executors  and  administrators,  in  manner  fol- 
lowing, (that  is  to  say) : — 

1.  That  they,  the  said  A,  B,  and  C,  shall  and  will  become  co- 
partners in  the  business  of  surveyors, auctioneers,  estate  agents,and 
appraisers  from  the  day  of  the  date  hereof;  and  shall  and  will  re- 
main and  be  copartners  in  the  said  business  for  the  term  of  four- 
teen years,  to  be  computed  from  the  day  of  the  date  hereof,  but 
subject  to  the  provisoes  for  determining  the  said  co-partnership 
hereinafter  contained,  (that  is  to  say) — Provided  always,  that  if 
the  said  A  and  B,  or  the  said  C,  shall  be  desirous  of  determining 
the  said  copartnership  as  far  as  regards  the  said  C,  and  of  such 
their  or  his  desire,  shall  give  one  calendar  month's  notice  in 
writing,  under  their  or  his  respective  hands  or  hand  to  the  other 
or  others  of  them,  or  leave  such  notice  at  the  place  where  the  said 
business  shall,  for  the  time  being,  be  carried  on  ;  then  and  in  such 
case,  from  and   after   the  expiration   of   the  said  one  calendar 

61 


376  APPENDIX. 

month's  notice,  the  copartnership  hereby  intended  to 
[  *376  ]  be  *established  shall,  in  regard  to  the  said  C,  absolutely 

cease  and  determine :  Provided  further,  that  if  either  of 
them  the  said  A  and  B  shall  be  desirous  of  determining  the  said 
copartnership  in  toto,  and  of  such  his  desire  shall  give  to  the 
other  of  them  three  calendar  months'  notice  in  writing,  or  leave 
such  notice  at  the  place  aforesaid,  then  and  in  such  case,  and  im- 
mediately after  the  expiration  of  such  three  calendar  months'  no- 
tice, it  shall  be  referred  to  G  of  &c.,  H  of  &c.,  and  K  of  &c.,  or 
such  one  or  more  of  them  as  shall  be  then  living  and  willing  to 
act  in  the  matter  as  referee  or  referees,  to  determine  whether  the 
said  copartnership  should  or  should  not  be  dissolved,  and  upon 
what  terms  and  conditions ;  and  for  that  purpose  all  necessary  ac- 
count books,  papers,  and  documents  shall  be  produced  and  sub- 
mitted to  them :  and  in  case  the  said  G,  H,  and  K,  or  such  one  or 
more  of  them  as  shall  undertake  to  act  as  referee  or  referees,  shall 
by  any  writing  under  their  or  his  hands  or  hand  to  be  delivered 
to  each  of  them,  the  said  A,  B,  and  C  personally,  or  to  be  left  at 
the  place  aforesaid,  determine,  award,  and  direct,  that  the  said  co- 
partnership shall  be  dissolved,  and  by  the  same  writing  shall 
specify  the  terms  and  conditions  on  and  subject  to  which  the 
same  shall  be  dissolved,  then  and  in  such  case,  from  the  day  on 
which  such  writing  under  the  hands  or  hand  of  the  said  referees 
or  referee  shall  be  so  delivered  or  left  as  aforesaid,  the  copartner- 
ship hereby  intended  to  be  established  shall,  in  regard  to  all  the 
said  partners,  absolutely  cease  and  determine. 

2.  That  in  case  the  said  C  shall  depart  this  life  before  the  ex- 
piration of  the  said  term  of  fourteen  years;  or  in  case  the  said 
copartnership  shall,  under  or  by  virtue  of  the  power  hereinbefore 
contained,  be  determined  so  far  as  regards  the  said  C  only,  then 
the  said  copartnership  shall  be  continued  by  the  said  A  and  B,  to 
the  end  of  the  said  term  of  fourteen  years,  upon  such  and  the 
same  terms,  and  under  and  subject  to  such  and  the  same  agree- 
ments, provisions,  and  stipulations  (including  the  power  of  deter- 
mining the  said  copartnership  by  the  said  A  and  B,)  as  are  con- 
tained in  these  presents  to  all  intents  and  purposes  whatsoever,  as 
if  the  copartnership  had  been  originally  formed  between  the  said 
A  and  B,  and  these  presents  had  been  made  and  entered  into  be- 
tween and  by  them  alone. 

3.  That  the  firm  and  style  of  the  said  copartnership  shall  be  A, 
B,  and  C. 

4.  That  the  business  of  the  said  copartnership  shall  be  carried 

on  at  the  house  and  premises  of  the  said  A  in aforesaid,  in 

the  rooms  now  appropriated  by  him  to  his  said  business,  or  at  such 
other  place  or  places  as  the  said  partners  shall  hereafter  agree 
upon. 

5.  That  from  the  day  of  the  date  of  these  presents,  and  from 
time  to  time,  and  at  all  times  during  the  said  copartnership,  the 


APPENDIX.  376 

said  A  shall  permit  and  suffer  the  rooms  in  his  said  house  now  ap- 
propriated to  his  said  business,  and  also  such  other  part  or  parts 
of  his  said  house  and  premises  as  shall  or  may  be  necessary  for 
carrying  on  the  copartnership  business,  to  be  used,  occupied,  and 
enjoyed  for  that  purpose:  but  such  house  and  premises  shall  not 
to  any  further  extent  be  considered  as  partnership  property. 

*6.  That  such  part  of  the  said  house  and  premises  as  r  #077  -1 
are  not  used  for  the  purposes   of  the  copartnership   L  J 

business,  shall  be  exclusively  held,  used,  occupied,  and  enjoyed 
by  the  said  A,  without  any  molestation  or  interruption  by  the 
said  B  and  C,  or  either  of  them. 

7.  That  on  the  determination  of  the  said  copartnership,  either 
by  effluxion  of  time,  or  otherwise,  the  said  A  shall  and  may  re- 
tain the  said  house  and  premises,  and  continue  to  carry  on  therein 
his  said  business  in  the  manner  in  which  he  now  carries  on  the 
same,  and  as  if  the  said  copartnership  had  never  existed, 

8.  That  all  the  debts  which  on  the  day  of  the  date  hereof  are 
due  and  owing  to  the  said  A  in  respect  of  his  said  business,  and 
all  the  gains  and  profits  which  shall  arise  from  the  sale  of  the 

— — —  estate,  situate  in  the  county  of ,  and  from  any  business 

connected  with  and  necessary  for  completing  such  sale,  shall  be 
received  and  retained  by,  and  be  the  exclusive  property  of,  the 
said  A. 

9.  That  the  rent,  and  all  taxes,  assessments,  and  outgoings 
whatsoever,  including  repairs,  which  during  such  time  as  the 
business  of  the  said  copartnership  shall  be  carried  on  in  the  said 

house  and  premises  in aforesaid,  or  which  shall  be  due  and 

payable  in  respect  of  the  same  or  any  other  premises  taken  for 
the  purpose  of  the  said  copartnership  business,  and  the  salaries, 
maintenance  and  wages  of  all  clerks,  servants,  and  workmen  to 
be  employed  in  the  said  business;  and  all  expenses,  losses,  and 
damages  which  shall  be  paid,  sustained,  or  incurred  in  carrying 
on  the  same,  or  in  any  wise  relating  thereto,  shall  be  paid  and 
borne  with  and  out  of  the  monies  and  effects  of  the  said  copart- 
nership, and  the  gains  and  profits  arising  from  the  same. 

10.  That  the  said  A  and  B  shall  be  entitled  to  the  net  gains 
and  profits  arising  from  the  business  of  the  said  copartnership, 
after  deducting  the  salary  or  allowance  made  to  the  said  C  as 
hereinafter  mentioned,  in  the  shares  and  proportions  following: 
(that  is  to  say,)  the  said  A  shall  be  entitled  to  two  equal  third 
parts  or  shares  thereof,  and  the  said  B  shall  be  entitled  to  the 
remaining  equal  third  part  or  share  thereof. 

11.  That  if  either  of  the  said  partners,  with  the  assent  of  the 
others  of  them,  shall  lend,  advance,  or  bring  into  the  said  part- 
nership concern  any  sum  of  money,  he  shall  be  entitled  to  debit 
the  said  copartnership  with  interest  for  the  same,  after  the  rate  of 
five  pounds  per  cent,  per  annum,  for  such  period  as  the  same 
shall  remain,  with  such  consent  as  aforesaid,  to  the  credit  of  the 


377  APPENDIX. 

said  copartnership,  the  same  to  be  payable  half-yearly;  and  such 
partner  is  also  to  be  at  liberty  to  withdraw  the  principal  money 
so  lent  or  advanced  or  brought  in,  at  his  free  will  and  pleasure. 

12.  That  in  each  year  of  the  said  copartnership,  it  shall  be 
lawful  for  the  said  A  to  take  out  of  the  monies  and  effects  of  the 
said  copartnership  any  sum  or  sums  of  money  not  exceeding  the 

sum  of pounds  quarterly  duringthe  said  copartnership;  and 

for  the  said  B  in  like  manner  to  take  out  any  sum  or  sums  of 

money  not  exceeding  the  sum  of pounds  quarterly,  which 

sums  shall  be  in  part  satisfaction  of  their  respective  shares  in  the 

residue  of  the  said  net  gains  and  profits. 
r*378]      *13.   That  the  said  C  shall,  during  the  first  three  years 
of  the  said  copartnership,  receive  out  of  the  gains  and 

profits  of  the  said  business  a  salary  or  allowance  of pounds  a 

year;  and  during  the  fourth  year  of  the  said  copartnership  a 

salary  or  allowance  of pounds  a  year;  and  in  the  fifth  and 

every  subsequent  year  of  the  said  copartnership  in  which  the 
net  and  clear  gains  and  profits  of  the  said  business  shall  amount 

to pounds  a  year  or  upwards,  a  salary  or  allowance  of 

pounds  a  year:  but  in  the  fifth  or  any  subsequent  year  of  the 
said  copartnership,  in  which  the  said  net  gains  and  profits  shall 

not  amount  to pounds  a  year,  then  a  salary  or  allowance  of 

pounds  a  year;  every  such  salary  or  allowance  to  be  paid 

to  the  said  C  in  equal  quarterly  portions. 

14.  That  on  the  thirty-first  day  of  December  now  next  ensu- 
ing, and  on  every  succeeding  thirty-first  day  of  December  during 
the  continuance  of  the  said  copartnership,  a  full  and  general 
account  and  rest  shall  be  made  and  taken  by  the  said  partners  of 
the  monies,  debts,  and  effects  belonging  and  due,  or  owing  to  the* 
said  copartnership,  and  of  all  such  debts  as  shall  be  due  and 
owing  from  or  by  the  said  copartnership  in  respect  of  the  busi- 
ness thereof,  which  from  time  to  time  shall  be  written  either  into 
the  ledger  belonging  to  the  said  copartnership,  or  into  two  sepa- 
rate books,  and  shall  be  signed  and  subscribed  by  each  and  every 
of  the  said  partners  within  one  calendar  month  after  the  time 
appointed  for  the  taking  thereof  respectively.  And  that  after 
such  subscription,  each  and  every  of  the  said  partners  shall  be 
bound  and  concluded  by  every  such  account  respectively,  unless 
some  manifest  error  shall  be  afterwards  found  therein,  and  be 
signified  by  writing  by  one  of  the  said  partners  to  the  other  or 
others  of  them,  and  in  which 'case  such  error  only  shall  be  rec- 
tified. 

15.  That  with  all  convenient  speed,  after  the  settlement  of 
such  yearly  account,  what  shall  appear  the  net  gains  and  profits 
arising  from  the  business  of  the  said  copartnership  during  the 
year,  ending  on  the  days  hereinbefore  appointed  for  the  taking  of 
such  account  (after  deducting  such  salary  or  allowance  to  the  said 
C  as  aforesaid,)  shall,  after  deducting  the  sums  to  be  taken  out  by 


APPENDIX.  378 

the  said  A  and  B,  in  part  satisfaction  of  their  respective  shares 
thereof  as  aforesaid,  be  taken  out  and  divided  between  the  said 
A  and  B,  in  the  proportions  in  which  they  shall  respectively  be 
entitled  thereto  as  hereinbefore  is  mentioned. 

16.  That  proper  books  of  account  shall  be  kept  by  the  said 
partners,  and  that  entries  shall  be  made  therein  of  all  such  mat- 
ters, transactions,  and  things,  as  are  usually  written  and  entered 
into  books  of  account,  kept  by  persons  engaged  in  concerns  of  a 
similar  nature. 

17.  That  the  said  books  of  account,  and  all  securities,  letters, 
papers,  and  writings,  which  shall  from  time  to  time  relate  to  or 
concern  the  said  copartnership  or  the  business  thereof,  shall  re- 
main and  be  kept  at  the  office  where  the  said  business  shall  be 
for  the  time  being  carried  on;  and  that  the  said  A  and  B  shall,  at 
all  times,  have  free  access  to  inspect,  examine,  cast  up,  and  copy 
out  the  same,  without  any  hindrance  or  denial  of  or  by  the  other 
of  them. 

18.  *That  the  cash  of  the  said  copartnership  shall  be   [  *379  ] 

kept  at  the  banking-house  of ,  (or  at  such  other 

banking-house  as  the  said  A  and  B  may  agree  upon,)  in  the  joint 
names  or  account  of  all  the  said  partners;  but  no  draft  or  checks 
for  any  copartnership  money  shall  be  drawn  except  by  the  said 
A  and  B. 

1 9.  That  each  and  every  of  the  said  partners  shall  be  just  and 
faithful  to  the  other  of  them  in  all  receipts,  payments,  accounts, 
dealings,  and  transactions,  on  account  of,  or  relating  to,  the  said 
copartnership;  and  shall  and  will  give  and  render  to  the  other 
or  others  of  them  a  just  and  faithful  occount  of  the  same,  when 
and  so  often  as  the  same  shall  be  reasonably  required. 

20.  That  neither  the  said  B,  nor  the  said  C,  during  the  con- 
tinuance of  the  said  copartnership,  either  by  himself  or  them- 
selves,-or  with  any  other  person  or  persons  whomsoever,  directly 
or  indirectly  shall  engage  in  any  other  business  whatsoever,  with- 
out the  consent,  in  writing,  of  the  said  A. 

21.  That  in  all  cases  where  there  shall  be  occasion  to  give  any 
bond,  note,  or  other  security,  for  the  payment  of  any  sum  or 
sums  of  money  on  account  of  the  said  copartnership,  such  bond, 
note,  or  other  security,  shall  be  respectively  executed  and  signed 
by  the  said  A  and  B,  or  by  one  of  them,  with  the  previous  con- 
sent, in  writing,  of  the  other  of  them. 

22.  That  if  any  of  the  said  partners  shall  give  any  such  bond 
note,  or  other  security,  which  shall  not  be  signed  and  executed  as 
last  aforesaid,  the  same  shall  be  deemed  a  dissolution  of  the  said 
partnership  so  far  as  regards  the  party  so  giving  such  bond,  note, 
or  other  security. 

23.  That  neither  of  the  said  partners  shall  purchase  or  contract 
for  any  goods,  wares,  merchandize,  article  or  thing  whatsoever, 


379 


APPENDIX. 


for  or  on  account  of  the  said  copartnership,  without  the  consent, 
in  writing,  of  the  said  A  and  B. 

24.  That  within  two  calendar  months  after  the  expiration  of 
the  said  term  of  fourteen  years,  or  after  the  dissolution  of  the  said 
copartnership  in  pursuance  of  either  of  the  provisoes  for  that 
purpose  hereinbefore  contained,  an  account,  in  writing,  shall  be 
stated  and  settled  between  the  said  partners  of  all  the  monies, 
debts,  and  effects  of  or  belonging  to,  and  all  the  debts  or  sums  of 
money  due  and  owing  from  or  by  the  said  copartnership;  and 
upon  the  finishing  of  such  account  the  partners  shall  forthwith 
make  due  provision  for  the  payment  and  satisfaction  of  such 
debts  and  engagements  as  shall  then  appear  to  be  due  from  the 
said  copartnership;  and  the  balance  of  the  said  copartnership 
monies,  debts,  and  effects,  and  the  profits  thereof,  and  other  the 
matters  to  be  included  in  such  general  account,  shall  after  making 
such  provision  as  aforesaid,  and  paying  to  the  said  C  the  arrears 
(if  any)  of  his  said  salary  or  allowance,  be  divided  between  the 
said  A  and  B,  or  their  respective  executors  or  administrators,  in 
the  shares  and  proportions  in  which  they  shall  be  respectively 
entitled  thereto;  and  after  making  such  division,  such  instrument, 
in  writing,  shall  be  executed  by  all  the  said  partners  respectively, 
for  facilitating  the  getting  in  of  outstanding  debts  and  effects, 
and  for  indemnifying   each   other   touching  the  premises,  and 

for  vesting  the  sole  right  and  property  in  the  said  re- 
r  *380  ]   spective  shares  *of  and  in  the  said  monies,  debts,  and 

effects,  in  the  partners  to  whom  the  same  respectively 
shall  upon  such  division  belong,  and  for  releasing  to  each  other 
all  claims  on  account  of  the  said  copartnership  as  are  usual  in 
cases  of  the  like  nature,  or  as  shall  be  necessary  for  carrying  into 
effect  any  order  or  direction  to  be  made  by  such  referees  or 
referee  as  aforesaid,  in  case  the  said  copartnership  shall  be  dis- 
solved by  their  or  his  direction. 

25.  That  within  two  calendar  months  after  the  determination 
of  the  said  copartnership,  by  the  death  of  either  of  them  the  said 
A  and  B  (in  case  the  said  copartnership  shall  be  so  determined,) 
an  account  in  writing  shall  be  stated  and  settled  of  all  debts  or 
sums  of  money  due  and  owing  to,  and  of  all  debts  or  sums  of 
money  due  and  owing  from,  or  by  the  said  copartnership;  and 
within  one  calendar  month  after  such  last-mentioned  account 
shall  be  so  stated  and  settled,  the  survivor  of  them,  the  said  A 
and  B,  shall  execute  and  give  to  the  executors  or  administrators 
of  him  so  dying  sufiicient  security  for  the  due  payment  of  such  a 
sum  as  on  the  preceding  annual  account  shall  appear  to  be  the 
amount  of  the  share  of  the  partner  so  dying  of  and  in  the  clear 
gains  and  profits  of  the  business  of  the  said  copartnership  for  such 
preceding  year,  and  shall  render  and  pay  to  the  executors  or  ad- 
ministrators of  such  deceased  partner  what,  if  any  thing,  shall  be 
otherwise  due  to  him  from  the  said  partnership  concern  up  to  the 


APPENDIX.  '  380 

preceding  annual  settlement,  and  enter  into  a  bond  to  collect  and 
get  in  such  of  the  outstanding  debts  and  effects  of  the  said  copart- 
nership, to  a  proportion  whereof  such  deceased  partner  would  be 
entitled  as  aforesaid;  and  from  time  to  time,  as  and  when  the  re- 
ceipts in  respect  thereof  shall  amount  to  100/.,  pay  the  proportion 
of  such  deceased  partner  to  his  executors  or  administrators;  and 
in  cases  such  outstanding  debts  and  effects  shall  not  be  collected 
within  twelve  calendar  months  then  next  following,  the  same 
shall  be  divided  in  such  and  the  same  manner  as  herein  provided 
for  on  the  determination  of  the  said  copartnership  by  effluxion  of 
time. 

26.  That  if  at  any  time  during  the  said  copartnership,  or  after 
the  determination  thereof,  any  dispute  or  controversy  shall  arise 
between  the  said  parties,  or  between  any  of  them  and  the  execu- 
tors or  administrators  of  the  other  or  others  of  them,  or  between 
their  respective  executors  or  administrators  concerning  any  of 
the  clauses,  covenants,  and  agreements  herein  contained,  or  any 
other  matter  or  thing  whatsoever  in  any  wise  relating  to  the  said 
copartnership,  the  same  shall  be  referred  to  the  award  or  arbitra- 
tion of  such  persons  as  shall  be  nominated  or  appointed  for  that 
purpose  by  the  parties  in  difference  within  thirty  days  next  after 
any  such  dispute  or  controversy  shall  happen;  and  in  case  such 
arbitrators  shall  not  agree  in  the  premises  within  the  space  of 
thirty  days  next  after  any  such  dispute  or  controversy  shall  be 
referred  to  them,  the  same  shall  be  referred  to  the  determination 
of  such  indifferent  person  as  the  said  arbitrators  by  any  writing, 
under  their  hands  shall  nominate  and  appoint  as  umpire  in  the 
premises;  and  that  the  award  of  such  arbitrators  is  made  in  writ- 
ing under  their  hands  and  seals,  to  be  delivered  to  the  parties  in 
difference  within  the  time  before  limited,  or  in  default  thereof 
the  award  of  such  umpire,  under  his  hand  and  seal,  to 
be  delivered  to  the  parties  in  *difference  within  thirty  [*  381  ] 
days  after  he  shall  be  so  appointed,  shall  be  binding  and 
conclusive  on  all  the  said  parties;  and  that  in  case  any  or  either 
of  the  parties  in  difference  shall  neglect  or  refuse,  by  the  space  of 
one  calendar  month  after  notice  in  writing  given  by  the  other  or 
others  of  them  for  that  purpose,  to  join  in  the  appointment  of 
such  arbitrators  as  aforesaid,  it  shall  be  lawful  for  the  arbitrator 
or  arbitrators  to  be  chosen  by  the  party  or  parties  giving  such 
notice,  to  make  an  award  which  shall  be  binding  in  like  manner 
as  if  the  party  or  parties  so  neglecting  or  refusing  had  chosen  an 
arbitrator  who  had  actually  joined  therein. 

And  lastly,  that  for  the  further  and  better  enforcing  the  per- 
formannce  and  observance  of  every  such  award  so  to  be  made  as 
aforesaid,  the  reference  or  submission  for  or  in  respect  of  the  same 
shall  be  from  time  to  time  be  made  a  rule  of  the  Court  of  King's 
Bench,  according  to  the  direction  of  the  statute  in  that  case  made 
and  provided.     In  witness,  &c. 


381  '  APPENDIX. 

No.  11. 

DEED  OF  COPARTNERSHIP  between  Six  Persons  as 
Merchants  luith  some  Special  Clauses. 

This  Indenture  made,  &c.  between  A  of  &c.  of,  the  first  part; 
B  of,  &c.  of  the  second  part;  C  of,  &c.  of  the  third  part;  D  of, 
&c.  of  the  fourth  part;  E.  of,  &c.  of  the  fifth  part;  and  F.  of,  &c. 
of  the  sixth  part.  Whereas  the  said  A,  B,  C,  D,  E,  and  F, 
have  agreed  to  become  copartners  in  the  business  of  general 
merchants  for  the  term,  and  under,  and  subject  to  the  provisions 
conditions,  covenants,  and  agreements  hereinafter  mentioned 
and  contained;  Now  this  indenture  witnesseth,  that  in  pursuance 
of  the  said  agreement,  and  in  consideration  of  the  mutual  con- 
fidence which  the  said  parties  respectively  repose  in  each  other, 
each  and  every  of  them  the  said  A,  B,  C,  D,  E,  and  F,  so  far  as 
relates  to  the  observance  and  performance  by  him,  his  executors 
and  administrator^,  of  the  covenants  and  agreements  hereinafter 
contained  on  his  and  their  parts  to  be  observed  and  performed, 
doth  hereby  for  himself,  his  heirs,  executors,  and  administrators, 
covenant,  promise,  and  agree  with  and  to  the  others,  and  each 
and  every  of  the  others  of  them,  their  and  his  executors  and  ad- 
ministrators, in  manner  following  (that  is  to  say) : 

That  they,  the  said  parties  respectively,  will  become  and  con- 
tinue copai'tners  in  the  business  of  general  merchants,  from  the 
day  of  the  dates  of  these  presents,  for  the  term  of  ten  years  thence 
next  ensuing. 

That  the  firm  or  style  of  the  said  copartnership,  shall  be  "A, 
B  and  Co.,"  or  such  other  firm  or  style  as  the  said  partners,  or  the 
major  part  of  them,  shall  hereafter  agree  upon. 

That  the  business  of  the  said  copartnership  shall  be  carried  on, 

at  or  in  the  house  or  warehouse  in ,  or  at  or  in 

f  *382  ]  such  other  *place  or  places  as  the  said  partners,  or  the 
major  part  of  them,  shall  hereafter  agree  upon. 

That  the  capital  or  joint  stock  of  the  said  copartnership,  shall 

consist  of  the  sum  of ,  or  such  other  sums  of  money  as  the 

said  partners,  or  the  major  part  of  them,  shall  hereafter  agree 
upon,  and  shall  be  brought  in  by  the  said  partners  in  the  propor- 
tions following:  (that  is  to  say)  three-fourteenth  parts  or  "Shares 
thereof  by  each  of  them  the  said  A  and  B ;  and  two-fourteenth 
parts  or  shares  thereof  by  each  of  them  the  said  C,  D,  E,  and  F. 

That  if  one  or  more  of  the  partners  shall  at  any  time  neglect 
or  refuse  to  bring  in  his  or  their  share  or  shares  of  the  said  capital 
of  the  said  copartnership  at  the  time  he  or  they  ought  to  bring 
in  the, same,  tiic  amount  of  such  share  or  shares,  or  such  part 
thereof  as  shall  not  be  brought  in,  sliall  be  placed  to  the  debit  of 


APPENDIX.  382 

the  account  of  such  partner  or  partners  with  the  said  copartnership, 
and  shall  carry  interest  at  the  rate  of  51.  for  100/.  by  the  year. 

That  if  any  one  or  more  of  the  said  partners  shall  at  any  time 
neglect  or  refuse,  for  the  space  of  three  calendar  months,  after 
being  thereunto  requested  in  writing  by  the  others  of  the  partners 
for  the  time  being,  or  the  major  part  of  them,  to  bring  in  his  or 
their  share  or  shares  of  the  said  capital  of  the  said  copartnership, 
it  shall  be  lawful  for  the  others  of  the  said  partners,  or  the  major 
part  of  them,  to  expel  the  partner  or  partners,  so  for  the  tinie 
being  offending  in  the  premises  from  the  said  copartnership,  in 
like  manner  and  upon  the  like  terms  as  hereinfter  is  mentioned, 
with  respect  to  the  expulsion  of  a  partner  in  any  of  the  events 
hereinafter  in  that  behalf  mentioned. 

That  the  said  capital  or  joint  stock,  and  the  increase  thereof, 
and  the  gains  and  profits  arising  from  the  same  respectively,  shall 
(subject  as  hereinafter  is  mentioned)  be  used  and  employed  in  the 
business  of  the  said  copartnership. 

That  the  rent  and  taxes  of  the  house  and  warehouse  in , 

and  of  any  other  house  and  warehouse,  in  which  the  business  of 
the  said  copartnership  shall,  for  the  time  being  be  carried  on,  and 
all  repairs,  additions,  and  alterations  which  shall  be  made  in  or  to 
the  same,  and  the  wages  or  maintenance  of  the  clerks,  apprentices, 
and  servants  who  shall  be  employed  in  the  business  of  the  said 
copartnership,  and  all  other  necessary  expenses  whatsoever  which 
shall  be  incurred  in  or  about  the  said  business  or  relating  thereto, 
and  all  debts  and  duties  which  shall  be  owing  by  reason  or  on  ac- 
count of  the  said  joint  trade,  and  any  loss  or  damage  which  sliall 
happen  thereto  by  bad  debts,  decay  of  goods,  suits  at  law  or  in 
equity,  or  otherwise,  shall  be  paid  or  borne  by  and  out  of  the  joint 
stock  of  the  said  copartnership,  and  the  gains  and  profits  arising 
from  the  business  thereof,  if  the  same  shall  be  sufficient  for  that 
purpose;  and  if  not,  then  as  to  the  deficiency  by  the  said  parties 
out  of  their  respective  separate  estates,  in  the  like  shares  and  pro- 
portions in  which  they  are  hereinbefore  required  to  bring  in  the 
capital  of  the  said  copartnership. 

That  the  said  partners  shall  be  entitled  to  the  net  gains  and 
profits  of  the  business  of  the  said  copartnership  (after  making 
such  deductions  as  hereinbefore  mentioned,)  in  the  like  shares  and 
proportions  in  which  they  arc  hereinbefore  required  to  bring  in 
the  capital  of  the  said  copartnership. 

"^That  it  shall  be  lawful  for  each  and  every  of  the  said  [  *383  ] 
partners  to  draw  out  of  the  said  copartnership  busi- 
ness by  four  equal  quarterly  portions,  on  the day  of  , 

the day  of ,  the day  of ,  and  the day 

of ,  in  every  year  during  the  said  copartnership,  for  his  own 

separate  use  a  sum  of  money  equal  in  amount  to pounds 

for  every  one  hundred  pounds  of  his  share  in  tiie  capital  of  the 

62 


383  APPENDIX. 

said  copartnership,  to  be  accounted  for  on  the  next  division  of  the 
profits. 

That  each  of  them  the  said  A  and  B,  shall  receive  out  of  the 
monies  and  effects  of  the  said  copartnership,  as  a  recompense  or 
remuneration  for  his  care  and  trouble  in  managing  and  carrying 

on  the  business  thereof,  the  yearly  sum  of  pounds,  and  so 

in  proportion  for  any  less  time  than  a  year;  and  that  the  said  F 
shall  receive  out  of  the  same  monies  and  effects,  as  a  recompense 
or  remuneration  for  his  care  and  trouble  in  attending  to  the 
affairs  and   business  of  the  said  coijartnership,  the  yearly  sum 

of pounds,  and  so  in  proportion  for  any  less  time  than  a 

year. 

That  in  case  any  of  the  said  partners  shall,  for  the  convenience 
of  the  business  of  the  said  copartnership,  and  with  the  consent  of 
the  others  of  the  partners,  or  the  major  part  of  them,  bring  into 
the  said  copartnership  business  any  sum  or  sums  of  money  by 
way  of  loan,  the  same  shall  be  immediately  entered  in  the  cash 
book  of  the  said  copartnership,  as  a  debt  due  from  the  concern  to 
the  partner  lending  the  same,  and  shall  thenceforth  become  a 
charge  upon  the  partnership  estate,  and  shall  bear  or  carry  inte- 
rest after  the  rate  of  51.  for  100(.  by  the  year;  and  the  partner 
lending  such  sum  or  sums  of  money  shall  be  at  liberty  to  take 
such  interest  out  of  the  cash  of  the  said  copartnership,  by  half- 
yearly  payments,  from  the  time  or  respective  times  of  lending 
the  same;  and  that  the  party  lending  shall  not  require  the  prin- 
cipal to  be  repaid,  and  the  partners  not  lending,  or  the  major 
part  of  them,  shall  not  require  the  partner  so  lending  to  take 
back  the  principal  without  six  months'  previous  notice  in  writing 
for  that  purpose  being  given  by  the  party  or  parties  requiring 
the  same  to  be  repaid  or  accepted  (as  the  case  may  be) ;  and  if 
the  party  lending  such  sum  or  sums  of  money  shall  neglect  or 
refuse  to  take  back  the  same,  upon  such  notice  as  aforesaid,  inte- 
rest thereon  shall  cease  from  the  time  of  the  expiration  of  such 
notice. 

That  the  said  partners  respectively  shall  from  time  to  time, 
during  the  continuance  of  the  said  partnership,  write  or  cause  to 
be  written,  in  proper  books  of  account  to  be  kept  for  that  pur- 
pose, true,  plain,  and  perfect  entries  of  all  monies,  goods,  wares, 
merchandise,  effects,  and  things  belonging  or  relating  to  the  busi- 
ness of  the  copartnership,  which  shall  be  received,  paid,  sold, 
delivered  or  contracted  for,  in  the  course  of  such  trade  or  busi- 
ness, and  of  all  such  other  matters  and  transactions  as  shall  be  or 
ought  to  be  entered  in  the  said  books  in  the  usual  and  regular 
course  of  the  said  business;  together  with  all  such  circumstances 
of  names,  times  and  places,  as  may  be  necessary  or  useful  for  the 
better  manifestation  of  the  state  and  proceedings  of  the  business 
of  the  said  copartnership. 


APPENDIX.  384 

That  the  said  books  of  account,  together  with  all 
bonds,  bills,  *notes,  drafts,  securities,  letters,  and  other  [  *384  ] 
papers  and  writings  relating  to  the  said  business,  shall 
be  kept  at  the  counting-house,  or  other  place  where  the  copart- 
nership business  shall  for  the  time  being  be  carried  on,  and  not 
elsewhere;  and  that  each  and  every  of  the  said  partners  shall 
and  may,  from  time  to  time,  and  at  all  times,  have  free  access  to 
inspect  and  examine,  cast  up,  and  copy  out  the  same,  at  his  own 
free  will  and  pleasure,  without  any  hinderance  or  denial  of  or  by 
the  others  or  any  of  the  others  of  them. 

That  the  said  A,  B,  and  F,  shall  devote  the  whole  of  their 
time  to  the  business  of  the  said  copartnership,  and  superintend 
the  management  thereof,  and  shall  faithfully  and  diligently  em- 
ploy themselves  in  and  about  the  affairs  and  concerns  thereof, 
and  carry  on  and  conduct  the  same  according  to  the  best  of  their 
skill  and  ability. 

That  the  said  C,  D,  and  E,  shall  not  be  obliged  to  attend  to 
the  business  of  the  said  copartnership  any  further  than  they  shall 
respectively  think  fit;  but  that  so  far  as  they  shall  attend  thei-eto, 
they  shall  carry  an  and  conduct  the  same  for  the  greatest  benefit 
and  advantage  of  the  copartnership. 

That  each  and  every  of  the  said  partners  shall  be  just  and 
faithful  to  the  others,  and  each  of  the  others  of  them,  in  all  buy- 
ings,  sellings,  accounts,  reckonings,  receipts,  payments,  dealings 
and  transactions,  in  or  about  the  said  business  of  the  said  copart- 
nership; and  shall  give  and  render  unto  the  others,  and  each  of 
the  others  of  them,  a  true  and  faithful  account  of  the  same,  when 
and  so  often  as  the  same  shall  be  reasonably  required. 

That  none  of  the  said  partners  shall,  without  the  consent  in 
writing  of  the  others,  or  other  of  them,  use  or  employ  any  of  the 
monies,  goods,  or  effects,  belonging  to  the  said  copartnership,  or 
engage  the  credit  thereof  in  any  matter  or  thing  whatsoever,  ex- 
cept upon  the  account,  and  for  the  use  and  benefit  of  the  said 
copartnership,  and  except  in  the  regular  and  ordinary  course  of 
business. 

That  none  of  the  said  partners  shall  or  will,  during  the  con- 
tinuance of  the  said  copartnership  be  concerned,  or  in  any  man- 
ner engaged,  in  any  other  trade,  manufacture,  or  business  what- 
soever. 

That  none  of  the  said  partners  shall,  without  the  consent  of 
the  others  of  them,  or  the  major  part  of  them,  take  any  appren- 
tice, or  articled  clerk,  to  be  employed  in  the  business  of  the  said 
copartnership,  or  hire  or  dismiss  any  other  clerk  or  servant  em- 
ployed ;  or  to  be  employed  in  the  said  business,  against  the  consent 
of  the  others  of  the  said  partners,  or  the  major  part  of  them. 

That  none  of  the  said  partners  shall,  at  any  time  during  the  con- 
tinuance of  the  said  copartnership,  without  th^  consent  in  writing 
of  the  others  of  them,  or  the  major  part  of  them,  lend  any  of  the 


384  APPENDIX. 

monies,  or  deliver  upon  credit  any  of  the  goods  belonging  to  the 
said  copartnership,  to  any  person  or  persons  whom  the  others  of 
the  said  partners,  or  the  major  part  of  them,  shall,  before  the 
lending  or  delivering  of  such  monies  or  goods,  have  forbidden  to 
be  trusted;  or  without  the  like  consent,  release  or  compound  any 
debt  or  debts  due  and  owing  to  the  said  copartnership,  except  for 
the  full  amount  thereof  first  paid;  or,  without  the  like  consent, 
sign  the  certificate  of  any  bankrupt  indebted  to  the  co- 
r  *385  1  partnership,  *except  in  cases  where  the  amount  of  the 
debt  shall  be  under  /. ;  and  that  each  of  the  said  part- 
ners shall  be  accountable  for,  and  shall  make  good  unto  this  part- 
nership, the  whole  of  such  debts  and  monies  as  he,  or  any  other 
person  by  his  order  or  authority,  shall  receive  or  give  any  receipt 
for. 

That  none  of  the  said  partners  shall  buy,  order,  or  engage  in 
any  contract  for  any  goods  or  merehandise  whatsoever,  on  account 
of  the  copartnership,  exceeding  the  value  of  /.,  without  the 
consent  in  writing  of  the  others  of  them,  or  the  major  part  of 
them,  for  that  purpose  first  had  and  obtained;  and  that  if  any  of 
them  shall  buy,  order,  or  engage  in  any  contract  for  any  goods  or 
merchandise  exceeding  the  value  of  /.,  without  such  consent  as 
aforesaid,  then  and  in  such  case  the  others  or  other  of  them,  shall 
or  may  elect  either  to  take  such  goods  or  merchandise  on  account 
of  the  said  copartnership,  or  to  allow  the  same  to  remain  for  the 
separate  use  of  the  party  or  parties  who  shall  so  buy,  order,  or 
contract  for  the  same. 

That  none  of  the  said  partners  shall,  without  the  consent  in 
writing  of  the  others  or  other  of  them  first  obtained,  enter  into 
any  bond,  or  become  bound  as  bail,  surety  or  security,  with  or  for 
any  person  or  persons  whomsoever,  or  subscribe  any  policy  of 
insurance;  or  do,  or  knowingly  suffer  to  be  done,  any  act,  matter, 
or  thing  whatsoever,  by  means  whereof  the  stock  and  effects,  be- 
longing or  to  belong  to  the  said  copartnership,  shall  or  may  be 
seized,  attached,  extended,  or  taken  in  execution. 

That  each  of  the  said  partners  shall,  from  time  to  time,  and  at 
all  times  hereafter,  save,  defend,  keep  harmless,  and  indemnified, 
the  others  of  the  said  partners,  and  their  respective  executors  and 
administrators,  and  the  capital  or  joint  stock  of  the  said  copart- 
nership, from  and  against  his  own  separate  debts  and  engagements, 
and  all  costs,  charges,  damages,  and  expenses  on  account  thereof. 

That  Messrs.  M.  and  Company,  or  such  other  bankers  as  the 
said  parties  shall  mutually  agree  on,  shall  be  the  bankers  of  the 
said  copartnership;  and  all  monies  which  shall  be  received  by  any 
of  the  said  partners  in  respect  of  the  said  copartnership  business, 
shall,  with  all  convenient  speed,  after  the  same  shall  be  received, 
be  paid  into  the  banking-house  for  the  time  being  agreed  upon 
by  the  said  parties. 

That  no  bill,  promissory  note,  or  other  security,  (except  drafts 


APPENDIX.  385 

or  cheques  upon  the  bankers  of  the  said  copartnership,)  sliall  be 
drawn,  accepted,  or  indorsed,  in  the  name,  or  with  the  firm  of  the 
copartnership,  by  any  of  the  said  partners,  without  the  consent  of 
the  others  of  the  said  partners,  or  the  major  part  of  them,  for  that 
purpose  first  had  and  obtained. 

That  if  any  of  the  said  partners  sliall  draw,  accept,  or  indorse 
any  bill,  note,  or  other  security,  in  the  name,  or  with  the  firm  of 
the  said  copartnership,  without  the  consent  of  the  others  of  the 
said  partners,  or  the  major  part  of  them,  for  that  purpose  first  had 
and  obtained,  every  such  bill,  note,  or  other  security,  shall  be 
deemed  to  be  given  on  the  separate  account  of  the  partner  or  part- 
ners drawing,  accepting,  or  indorsing  the  same;  and  he  or  they 
shall  accordingly  pay,  satisfy,  and  discharge  the  same  out  of  his 
or  their  separate  estate  or  estates ;  and  shall  indemnify 
and  save  *harmless  the  others  and  each  of  the  others  of  f  *386  1 
them,  their,  and  his  heirs,  executors,  and  administra- 
tors, and  their  and  his  estate  and  effects  respectively,  from  and 
against  the  payment  thereof,  and  all  actions,  suits,  costs,  damages, 
and  expenses  on  account  thereof. 

That  on  the  first  day  of  now  next  ensuing,  and  on 

every  succeeding  first  day  of  during  the  continuance 

of  the  said  copartnership,  a  general  account  or  rest,  in  writing, 
shall  be  made  and  taken  by  the  said  partners,  or  some  or  one  of 
them,  either  alone  or  with  the  concurrence  of  the  others  or  other 
of  them,  of  all  monies,  debts,  and  effects,  belonging,  or  due,  or 
owing  to  the  said  copartnership,  and  of  all  such  debts  as  shall  be 
then  owing  by  the  said  partners,  for  or  on  account  of  the  said  co- 
partnership, to  any  person  or  persons  whomsoever ;  and  also  of 
all  such  matters  and  things  as  are  usually  included  in  accounts  of 
the  same  nature;  and  that  when,  and  so  soon  as  the  said  yearly  ac- 
count, for  the  time  being,  shall  be  adjusted  and  settled,  the  same 
shall  be  signed  by  all  the  said  partners;  and  the  said  partners  shall 
afterwards  be  bound  and  concluded  by  each  such  yearly  account, 
unless  some  error  to  the  amount  of  twenty  pounds  or  upwards 
shall  appear  therein,  within  three  calendar  months  from  the  set- 
tlement thereof  respectively;  and,  in  that  case,  the  account  or  ac- 
counts shall  be  opened  and  unravelled  so  far  only  as  relates  to  the 
error  or  errors  which  shall  have  appeared  therein  as  aforesaid. 

That  after  the  settlement  of  every  such  yearly  account,  as 
aforesaid,  such  part  of  the  clear  gains  and  profits  of  the  preceding 
year  as  the  said  partners,  or  the  major  part  of  them,  shall  mutually 
agree  upon,  after  payment  or  allowance  of  the  yearly  sums  so 
agreed  to  be  taken  out  by  them  for  their  separate  use  as  aforesaid, 
shall  be  taken  out  and  divided  between  the  said  partners,  in  the 
proportions  in  which  they  are  entitled  to  the  same  as  aforesaid; 
and  the  surplus  or  residue  thereof  shall,  from  time  to  time,  be 
added  to,  and  go  in  augmentation  of  the  capital  of  the  said  co- 
partnership. 


386  APPENDIX. 

That  it  shall  be  lawful  for  each  of  them  the  said  A  and  B,  at 
any  time  after  the  expiration  of  the  first  three  years  of  the  said 
copartnership  term  of  ten  years,  to  retire  from  and  relinquish  the 
business  of  the  said  copartnership,  on  giving  six  calendar  months' 
previous  notice  in  writing  of  his  intention  so  to  do  to  the  others 
of  the  said  partners  for  the  time  being,  or  leaving  such  notice  at 
their  usual  or  last  known  places  of  abode. 

That  if  the  said  A  or  B,  or  both  of  them,  shall,  in  pursuance  of 
the  provision  hereinbefore  for  that  purpose  contained,  give  or 
leave  notice  in  writing  of  hi^  or  their  intention  to  retire  fi'om  and 
relinquish  the  said  Ijusiness,  the  said  A  or  B,  or  both  of  them,  (as 
the  case  may  be,)  shall,  at  the  expiration  of  six  calendar  months 
from  the  time  when  such  notice  shall  have  been  so  given  or  left 
as  aforesaid,  be  considered  to  have  retired  from  the  said  copart- 
nership; and  the  said  copartnership  shall,  from  that  time,  as  to 
the  said  A  or  B  or  both  of  them,  cease  and  determine. 

That  if  the  said  A  or  B,  or  both  of  them,  shall  retire  from  the 
said  copartnership,  in  pursuance  of  the  prb vision  hereinbefore  for 
that  purpose  contained;  or  if  any  one  or  more  of  the  said  partners 
shall  die  while  engaged  in  the  said  copartnership,  then  and  in  any 
of  the  said  cases,  and  when  and  so  often  as  the  same 
[  *387  ]  shall  happen,  *the  retiring  partner,  his  executors  and 
administrators,  or  the  executors  or  administrators  of  the 
deceased  partner,  (as  the  case  may  be,)  and  the  continuing  or  sur- 
viving partners  or  partner,  their  or  his  executors  or  administra- 
tors, shall,  within  two  calendar  months  next  after  such  retirement 
or  death,  fix  a  value  on  the  part  or  share  of  the  retiring  or  de- 
ceased partner,  of  and  in  the  stock,  capital,  and  effects  of  the  said 
copartnership,  and  within  twenty  days  after  the  value  of  such 
part  or  share  shall  be  so  fixed  as  aforesaid,  the  continuing  or  sur- 
viving partners  or  partner,  their  or  his  executors  or  administra- 
tors, shall  execute  and  give  to  the  retiring  partner,  his  executors 
or  administrators,  or  to  the  executors  or  administrators  of  the  de- 
ceased partner,  (as  the  case  may  be,)  a  bond  in  a  penalty  double 
the  principal,  conditioned  for  the_  payment  of  such  value,  with 
interest  for  the  same,  after  the  rate  of  four  pounds  for  one  hun- 
dred pounds  by  the  year,  to  be  computed  from  the  retirement  of 
the  retiring  partner,  or  the  decease  of  the  deceased  paatner,  (as 
the  case  may  be,)  in  manner  following  (that  is  to  say): — One 
moiety  or  half  part  of  such  value  at  the  expiration  of  twelve  calen- 
dar months  after  such  retirement  or  death,  and  the  remaining 
moiety  or  half  part  of  such  value,  at  the  expiration  of  eighteen 
calendar  months  after  such  retirement  or  death;  and  the  interest 
of  the  said  value,  or  of  so  much  thereof  as  shall,  for  the  time 
being,  remain  due  at  the  expiration  of  every  six  calendar  months 
after  such  retirement  or  death;  and  the  continuing  or  surviving 
partners  or  partner,  their  or  his  executors  or  administrators,  shall 
also,  within  twenty  days  after  the  value  of  the  share  of  any  retir- 


APPENDIX.  387 

ing  or  deceased  partner  shall  be  so  fixed  as  aforesaid,  execute  and 
give  to  the  retiring  partner,  his  executors  or  administrators,  or  to 
the  executors  or  administrators  of  tlie  deceased  partner,  (as  the 
case  may  be,)  another  bond  in  a  sufficient  or  reasonable  penalty, 
for  indemnifying  him  or  them,  and  the  estate  and  effects  of 
the  retiring  or  deceased  partner,  (as  the  case  may  be,)  from  and 
against  the  debts  and  engagements  due  and  owing  from  the  said 
copartnership  at  the  time  of  such  retirement  or  death,  and  from 
and  against  all  actions,  suits,  damages,  aod  expenses  whatsoever 
in  respect  thereof;  and  the  retiring  partner,  his  executors  or  ad- 
ministrators, or  the  executors  or  administrators  of  the  deceased 
partner,  (as  the  case  may  be,)  shall,  within  the  said  twenty  days, 
release  and  assign  to  the  continuing  or  surviving  partners  or  part- 
ner, their  or  his  executors  or  administrators,  all  his  or  their  share, 
right,  title,  and  interest,  of  in  and  to  the  stock,  monies,  debts,  and 
effects,  belonging,  due,  and  owing  to  the  said  copartnership,  and, 
so  far  as  possible,  empower  and  enable  them  and  him  to  recover 
and  receive  the  same. 

That  if  any  of  the  said  partners  shall,  at  any  time  during  the 
continuance  of  this  copartnership,  be  found  lunatic,  then,  and  in 
every  such  case,  it  shall  be  lawful  for  the  others  of  the  said  part- 
ners, or  the  major  part  of  them,  at  any  time  thereafter,  by  any 
writing  under  their  hands,  to  be  delivered  to  the  committee  of 
the  estate  of  such  lunatic  partner,  or  left  at  his  last  or  usual  place 
of  abode,  to  determine  and  dissolve  the  said  copartnership  as  to 
such  partner,  and  to  take  to  and  purchase  his  share  in  the  copart- 
nership capital  and  effects,  on  the  footing  of  the  last 
valuation  or  rest  *vvhich  shall  have  bccn'made  thereof;  [  *388  1 
or  if  there  shall  have  been  no  such  valuation  or  rest 
made  within  twelve  calendar  months  immediately  preceding  the 
determination  or  dissolution  of  the  said  copartnership  at  last 
aforesaid,  then,  on  the  footing  of  a  valuation  to  be  made  by  the 
continuing  partners  and  the  committee  of  the  estate  of  the  partner 
so  for  the  time  being  found  lunatic,  or  by  arbitrators  to  be  ap- 
pointed by  them  respectively,  in  like  manner  as  is  hereinafter 
provided  with  respect  to  the  settlement  by  arbitration  of  any 
difference  or  dispute  which  may  arise  under  or  by  virtue  of 
these  presents;  and  that  the  value  of  such  share  to  be  ascertained 
as  aforesaid,  together  with  interest  thereon,  after  the  rate  of  five 
pounds  for  one  hundred  pounds  by  the  year,  to  be  computed  from 
the  then  last  valuation  or  rest,  or  the  determination  or  disso- 
lution of  the  said  copartnership  as  last  aforesaid,  (as  the  case  may 
be,)  shall  be  secured  to  the  committee  of  the  estate  of  the  partner 
so  for  the  time  being  found  lunatic,  by  the  joint  and  several  bond 
or  obligation  in  writing  of  the  continuing  partners,  at  such  times 
and  in  such  manner  as  hereinbefore  is  mentioned,  with  respect  to 
the  payment  of  the  value  of  the  share  in  the  copartnership  effects 


388  APPENDIX. 

of  any  partner  who  shall  retire  from  the  said  copartnership,  or 
die  during  the  continuance  thereof. 

That  upon  the  entire  or  partial  dissolution  of  the  said  copart- 
nership, under  any  of  the  provisions  hereinbefore  contained,  a 
notice  of  the  determination  of  the  said  partnership  shall  be  signed 
by  all  the  partners  ,and  inserted  in  the  London  Gazette,  and  sent 
to  the  customers  of  the  said  copartnership;  and  that  if  any  of  the 
said  partners  shall  neglect  or  refuse,  for  the  space  of  three  days 
after  being  thereunto  requested  by  the  others,  or  any  of  the 
others  of  them,  to  sign  such  notice,  or  shall  by  reason  of  lunacy, 
illness,  absence  from  the  kingdom,  or  otherwise,  be  unable  to 
sign  the  same,  then,  and  in  every  such  case,  it  shall  be  lawful  for 
the  partners  to  sign  such  notice,  in  or  with  the  name,  and  as  the 
attorneys,  of  the  partner  or  partners  who  shall  so  neglect  or  re- 
fuse, or  be  incapable  to  sign  the  same  as  aforesaid. 

That  it  shall  be  lawful  for  each  of  them  the  said  A  and  B,  at 
any  time  or  times  while  engaged  in  the  said  copartnership,  by 
deed  or  writing  under  his  hand  and  seal,  and  at  any  time  here- 
after, while  engaged  in  the  said  business,  by  his  last  will  and  tes- 
tament in  writing,  or  any  codicil  or  codicils  thereto  in  writing, 
to  nominate  and  appoint  one  of  his  sons  to  succeed  to  his  share 
in  the  said  copartnership  business,  and  the  capital  or  joint  stock 
and  future  gains  and  profits  thereof;  and  to  assign,  bequeath,  or 
otherwise  make  over  the  same  share  to  such  son  accordingly; 
provided  always,  that  no  son  of  the  said  A  or  of  the  said  B  shall 
succeed  to  his  father's  share  in  the  said  business,  under  this  pre- 
sent provision,  unless  at  the  time  of  his  nomination  thereto  he 
shall  be  of  the  age  of  twenty-one  years,  and  shall,  within  one 
calendar  month  next  after  his  nomination,  signify  his  intention  to 
succeed  to  such  share,  to  the  continuing  or  remaining  partners, 
by  some  writing  under  his  hand,  to  be  given  to  them,  or  left  for 
them  at  the  counting-house  where  the  copartnership  business 
shall,  for  the  time  being,  be  carried  on. 

That  in  case  any  son  of  the  said  A  or  of  the  said  B, 
r  *389  1  shall  ^succeed  to  his  father's  share  in  the  said  copartner- 
ship business,  under  the  provision  lastly  hereinbefore 
contained,  he  shall  from  that  time  be  an  acting  partner  in  the  said 
business  in  respect  of  such  share,  and  shall  be  entitled  to  such 
share,  upon  the  same  terms  and  conditions,  and  with,  under,  and 
subject  to  the  same  benefits,  advantages,  powers,  provisions,  res- 
trictions, duties,  regulations,  conditions,  and  agreements,  and  in 
every  respect  in  the  same  manner,  as  his  father  would  have  been 
entitled  to  the  same  if  he  had  lived  and  remained  a  partner  in 
respect  thereof,  save  and  except  the  powers  of  nomination,  or 
appointment  and  assignment,  or  bequest  lastly  hereinbefore  con- 
tained. 

That  with  all  convenient  speed  after  any  person  or  persons  shall 


I 


APPENDIX.  389 

be  admitted  a  partner  or  partners  in  the  said  copartnership  busi- 
ness under  the  provision  hereinbefore  for  that  purpose  contained, 
such  deeds  of  covenant  and  other  deeds,  acts,  matters,  and  things 
shall  be  prepared,  made,  done,  and  executed  by  and  between  the 
said  parties,  as  counsel  learned  in  the  law  shall  reasonably  advise 
or  require,  for  placing  the  admitted  partner  or  partners  in  the  situ- 
ation of  the  party  in  respect  of  whose  share  he  or  they  shall  be 
admitted,  and  for  subjecting  such  partner  or  partners  to  the  co- 
venants and  agreements  herein  contained,  so  far  as  the  same  relate 
to  or  concern  the  share  in  respect  of  which  he  or  they  shall  be  so 
admitted. 

That  at  the  end  or  expiration  or  determination  of  this  copart- 
nership, a  final  settlement  of  accounts  in  writing  shall  be  made  by 
the  partners  for  the  time  being,  of  all  the  stock  in  trade,  debts,  and 
effects,  of  or  belonging  and  due  and  owing  to  the  said  copartner- 
ship, and  also  of  the  debts  and  engagements  due  and  owing  from, 
or  to  be  performed  by,  the  said  copartnership;  and  upon  the 
statement  of  such  last-mentioned  account,  the  said  partners,  or  the 
major  part  of  them,  shall  make  such  provision  for  the  payment  and 
satisfaction  of  the  debts  and  engagements  which  shall  then  appear 
to  be  due  from,  or  to  be  performed  by,  the  said  copartnership,  as 
they  shall  think  fit  and  proper;  and  subject  thereto  the  said  stock 
in  trade,  debts,  and  effects  of  or  belonging  and  due  and  owing  to 
the  said  copartnership,  and  so  to  be  included  in  such  last-men- 
tioned account  as  aforesaid,  shall  be  allotted,  divided,  and  appor- 
tioned unto,  between,  and  amongst  the  partners  for  the  time  being 
entitled  thereto,  in  such  lots,  shares,  manner,  and  form  as  the 
said  partners,  or  the  major  part  of  them,  shall,  in  their  or  his  own 
discretion,  think  proper  to  order  or  direct;  and  after  making  such 
division,  such  instruments  in  writing  shall  be  executed  by  the  said 
partners,  for  facilitating  the  getting  in  of  the  debts  and  effects 
outstanding,  and  for  indemnifying  each  other  touching  the  pre- 
mises, and  for  vesting  the  sole  right  and  property  in  the  said  re- 
spective shares  and  allotments  of  the  said  stock,  effects,  and 
premises,  in  the  parties  to  whom  the  same  respectively  shall,  upon 
such  division,  belong,  and  for  releasing  to  eacli  other  all  claims 
and  demands  on  account  of  the  said  copartnership,  as  are  usual 
in  cases  of  the  like  nature. 

That  if  an}^  doubt,  difference,  or  question  shall  at  any  time 
hereafter  arise  or  happen  between  or  amongst  the  said  parties  to 
these  presents,  or  any  of  them,  or  between  any  of  them 
and  the  *exccutors  or  administrators  of  the  other  or  [  *390  ] 
others  of  them,  or  between  their  respective  executors, 
administrators,  or  assigns,  touching  the  coustruction  of  these  pre- 
sents, or  any  clause,  matter,  or  thing  herein  contained,  or  any 
account,  or  rest,  or  valuation,  or  appraisement,  to  be  made  as 
hereinbefore  is  mentioned,  or  any  other  matter,  cause,  or  thing 
whatsoever,  in  any   wise  relating  to  or  concerning  the  said  co- 

63 


390 


APPENDIX. 


partnership,  or  the  business  thereof,  and  such  doubt,  difference, 
or  question  shall  not  be  settled  and  decided  between  or  amongst 
themselves,  within  one  calendar  month  next  after  the  same  shall 
have  arisen;  then,  and  in  every  or  any  such  case,  and  when  and 
so  often  as  the  same  shall  happen,  such  doubt,  difference,  or  ques- 
tion shall,  upon  the  request  of  any  of  the  said  partners,  or  their  or 
any  of  their  executors  or  administrators,  from  time  to  time  be 
reduced  into  writing,  and  be  committed  or  referred  to  the  arbitra- 
tion of  three  indifferent  and  competent  persons,  one  of  them  to 
be  chosen  by  one  of  the  parties  in  difference,  and  another  of  them 
by  the  other  party  in  difference,  and  the  third  by  the  two  persons 
who  shall  be  so  first  chosen,  so  as  that  such  three  indifferent  and 
competent  persons  be  chosen  within  two  calendar  months  next 
after  such  request;  and  the  award,  order,  or  determination  of  the 
said  three  persons  so  to  be  chosen  as  aforesaid,  or  any  two  of 
them,  in  the  matter  or  matters  referred  to  them,  shall  be  binding 
and  conclusive  upon  the  said  parties  in  difference,  and  their  res- 
pective heirs,  executors,  administrators,  and  assigns,  and  shall  be 
performed,  observed,  and  kept  by  them  accordingly,  without  any 
further  suit  or  trouble  whatsoever,  so  as  such  award,  order,  or 
determination  be  made  and  set  down  in  writing,  under  the  hands 
and  seals  of  such  three  persons,  or  any  two  of  them,  within  the 
space  of  twenty-one  days  next  after  all  the  said  three  persons 
shall  have  been  so  appointed  as  aforesaid. 

That  if  any  such  doubt,  difference,  or  question  as  aforesaid 
shall  arise,  and  any  of  the  said  partners,  or  his  or  their  executors, 
administrators,  or  assigns,  shall,  by  any  writing  under  his  or  their 
hand  or  hands,  to  be  giveil  to  the  other  partner  or  partners,  or  their 
or  his  executors,  administrators,  or  assigns,  or  left  at  his  or  their 
usual  or  last  known  place  or  places  of  abode,  request  such  other 
partners  or  partner,  or  their  or  his  executors,  administrators,  or 
assigns,  to  refer  such  doubt,  difference,  or  question  to  arbitration, 
and  to  nominate  some  indifferent  and  competent  person  to  be  an 
arbitrator  therein  on  his  or  their  behalf,  and  the  person  or  persons 
to  or  for  whom  such  request  shall  be  so  given  or  left  as  last  afore- 
said shall,  for  the  space  of  two  calendar  months  next  after  such 
request,  refuse  or  neglect  so  to  do;  then,  and  in  such  case,  and  so 
often  as  the  same  shall  happen,  it  shall  and  may  be  lawful  to  and 
for  the  person  or  persons  giving  or  leaving  such  request,  by 
writing  under  his  or  their  hand  or  hands,  to  choose  and  appoint 
some  indifferent  and  competent  person  to  act  as  an  arbitrator  on 
the  part  of  the  party  or  parties  so  refusing  or  neglecting  as  afore- 
'  said;  and  the  two  persons  who  shall  be  so  chosen  arbitrators,  as 
last  hereinbefore  is  mentioned,  shall  thereupon,  or  in  a  reasonable 
time  thereafter,  choose  an  umpire  between  them ;  and  the  award 
or  determination  of  such  arbitrators  or  umpire,  as  last 
r  *391 1  liereinbefore  *is  mentioned,  in  the  matters  which  shall 
be  so  referred  to  them  as  aforesaid,  shall,  to  all  intents, 


APPENDIX.  '  391 

effects,  constructions,  and  purposes,  be  as  valid,  effectual,  binding, 
and  conclusive,  as  if  the  person  chosen  as  arbitrator  by  the  person 
or  persons  so  giving  or  leaving  such  request  as  aforesaid  had 
been  chosen  by  the  person  or  persons  to  or  for  whom  such  re- 
quest shall  have  been  given  or  left. 

And  that  for  the  further  and  better  enforcing  the  observance 
and  performance  of  every  or  any  award,  order,  or  determination, 
to  be  made  as  aforesaid,  the  reference  or  submission  for  or  in 
respect  of  the  same  shall  from  time  to  time  be  made  a  rule  of  one 
of  his  Majesty's  Courts  of  King's  Bench  or  Common  Pleas,  at 
Westminster,  according  to  the  direction  of  the  statute  in  that  case 
made  and  provided.     In  witness,  &c. 


No.  III. 

DEED  POLL  for  continning  or  renewing  a  Partnership  for 
a  further  Term,  to  be  indorsed  upon  the  Partnership  Deed. 

To  all  to  whom  these  presents  shall  come,  the  within-named 
A,  B,  C,  and  D  send  greeting.     Whereas  the  term  of  fourteen 
years,  mentioned  and  prescribed  in  and  by  the  within-written 
indenture,  for  the  continuance  of  the  partnership  thereby  agreed 
to  be  entered  into  by  and  between  the  said  parties,  doth  this  day 
expire;  but  the  said  parties,  considering  that  it  would  be  for' 
their  mutual  benefit  and  advantage  to  extend  and  prolong  the 
said  partnership,  have  agreed  to  continue  partners  in  the  within- 
mentioned  trade,  mystery,  and  business  of  lead-merchants,  and 
in  the  manufactory  and  sale  of  all  articles  and  things  appertaining 
to  the  lead  trade,  henceforth,  for  the  further  term  of  seven  years, 
upon  the  same  terms  and  conditions,  and  subject  to   the  same 
regulations,  stipulations,  provisions,  and  agreements,  as  are  within 
expressed  of  and  concerning  the  said  partnership  thereby  created. 
Now  these  presents  witness,  and  each  of  them  the  said  A,  B,  C, 
and  D  doth  hereby,  for  himself,  his  heirs,  executors,  and  admin- 
istrators, covenant,  promise,  and  agree  with  and  to  the  others 
and  other  of  them,  their  and  his  executors  and  administrators, 
that  they  the  said  A,  B,  C,  and  D  shall  and  will  continue  and  be 
copartners  in  the  copartnership  trade  or  business  in  which  they 
are  now  engaged   under  the  within-written  indenture,  for  the 
term  of  seven  years  hence  next  ensuing,  and  fully  to  be  complete 
and  ended,  upon  the  same  terms  and  conditions,  and  subject  to 
the  same  regulations,  stipulations,  provisions,  and  agreements,  in 
every  respect,  as  are  within  expressed  and  declared,  and  in  the 
same  manner  as  if  the  within-mentioned  copartnership  term  of 
fourteen  years  did  not  expire  till  the  determination  of  the  said 
term  of  seven  years;  and  shall  and  will,  during  the  said  term  of 


391  APPENDIX.    " 

seven  years,  observe,  perform,  and  keep  the  said  conditions, 
regulations,  stipulations,  provisions,  and  agreements,  in  like  man- 
ner as  if  the  same  were  repeated  or  inserted  in  these  presents. 
In  witness,  &c. 


[*392]  *No.  IV. 

BEEB  of  BE  LEASE  and  ASSIGNMENT  from  a  Retir- 
ing to  a  continuing  Partner. 

This  indenture  made,  &c.  between  A,  of  &c.  of  the  one  part, 
and  B,  of  &c.  of  the  other  part.  Whereas  the  said  A  and  B  have  for 
several  years  past  carried  on,  in  copartnership  together,  the  trade 
or  business  of  booksellers  and  publishers:  And  whereas  on  the 

■ day  of now  last  past,  the  said  A,  with  the  consent  of 

the  said  B,  retired  from  the  said  copartnership,  and  it  was  there-- 
upon  agreed  that  he  should  receive  and  take,  in  satisfaction  of 
his  share  and  interest  in  the  said  business,  and  the  stock,  monies, 
merchandises,  debts,  and  effects,  of  or  belonging  to  the  same,  the 

sum  of  pounds,  with  interest  for  the  same,  after  the  rate  of 

five  pounds  for  one  hundred  by  the  year,  to  be  computed  from 

the  said day  of now  last  past,  by  the  instalments,  at 

the  times,  and  in  manner  hereinafter  mentioned;  (that  is  to  say,) 

the  sum  of pounds,  with  interest  thereon  after  the  rate  and 

to  be  computed  as  aforesaid,  on  the day  of ;  the  sum 

of pounds,  with  interest  thereon  after  the  rate  and  to  be 

computed  as  aforesaid,  on  the day  of ;  and  the  sum  of 

pounds,  with  interest  thereon  after  the  rate  and  to  be  com- 
puted as  aforesaid,  on  the day  of  ;  and  that  the  pay- 
ment of  the  same  several  sums  of pounds, pounds,  and 

pounds,  with  interest  as  aforesaid,  should  be  secured  by  the 

bond  of  the  said  B  in  a  sufficient  penalty,  and  that  the  said  A 
should  execute  and  give  the  release  and  assignment,  and  power 
of  attorney,  hereinafter  respectively  contained:  And  whereas,  in 
pursuance  and  part-performance  of  the  said  agreement,  the  said 
B  has,  by  his  certain  bond  or  obligation  in  writing,  bearing  even 
date  herewith,  become  bound  to  the  said  A,  his  executors  and  ad- 
ministrators, in  the  penal  sum  of  pounds,  subject  to  a  con- 
dition written  under  the  said  bond,  for  making  the  same  void  on 
payment  by  the  said  B,  his  heirs,  executors,  or  administrators,  or 
any  of  them,  to  the  said  A,  his  executors,  administrators,  or  assigns, 

of  the  said  several  sums  of pounds, pounds,  and  

pounds,  with  interest  for  the  same  respectively,  after  the  rate  and  to 
be  computed  as  aforesaid,  by  such  instalments,  at  such  times,  and  in 
such  manner  as  therein  expressed.  Now  this  indenture  witnesseth, 
that  in  pursuance  and  further  performance  of  the  said  agreement, 


APPENDIX.  392 

and  in  consideration  of  the  premises,  and  of  the  sum  of  five  shil- 
lings of  lawful  money  of  Great  Britain,  by  the  said  B  to  the  said  A 
paid,  at  or  immediately  before  the  sealing  and  delivery  of  these 
presents  (the  receipt  whereof  is  hereby  acknowledged,)  he  the  said 
A  doth  by  these  presents  grant,  release,  assign,  transfer,  and  set 
over  unto  the  said  B,  his  executors,  administrators,  and  assigns,  all 
the  part  or  share,  estate,  right,  title,  property,  and  interest  what- 
soever of  him  the  said  A,  of,  in,  and  to  the  stock  in  trade,  debts, 
credits,  capital,  merchandises,  and  effects,  and  every 
*part  thereof,  of  or  belonging,  or  due  and  owing,  to  the  [  *393  ] 

said  copartnership,  on  the  said day  of 

now  last  past.  To  have  and  to  hold,  receive  and  take,  the  said 
part  or  share,  and  all  and  singular  other  the  premises  hereby 
granted,  released,  and  assigned,  or  intended  so  to  be,  and  every 
part  thereof,  unto  the  said  B,  his  executors,  administrators,  and 
assigns,  for  his  own  absolute  use  and  benefit;  but  subject,  never- 
theless, to  the  payment  and  performance  of  the  debts  and  engage- 
ments which  have  been  contracted  or  entered  into  by  or  on  the 

behalf  of  the  said  copartnership,  and  which  on  the  said day 

of now  last  past  remained  unpaid  and  unperformed.  And 

the  said  A  doth  herby  nominate,  constitute,  and  appoint  the  said 
B  to  be  the  true  and  lawful  attorney  of  him  the  said  A,  in  his 
name  alone,  or  in  the  name  of  him  the  said  A  jointly  with  the 
said  B,  to  demand,  sue  foi',  recover  and  receive,  of  and  from  all 
and  every  the  person  or  persons  liable  to  deliver  or  pay  the 
same,  respectively,  the  stock  in  trade,  monies,  debts,  credits, 
merchandises,  and  effects,  belonging  or  due  and  owing  to  the 
said  copartnership;  and  on  the  delivery  or  payment  thereof,  or 
of  any  part  thereof  respectively,  to  give,  sign,  and  execute  re- 
ceipts, acquittances,  releases,  and  other  discharges  for  the  same 
respectively;  and  on  nondelivery  and  nonpayment  thereof,  or  of 
any  part  thereof  respectively,  to  commence  and  prosecute  such 
actions,  suits,  or  other  proceedings,  at  law  or  in  equity,  for  reco- 
vering or  compelling  the  payment  or  delivery  thereof  respec- 
tively, as  he  the  said  B  shall  think  proper;  and  also  to  adjust, 
settle,  compound,  and  compromise,  all  accounts,  reckonings, 
transactions,  and  things  whatsoever,  relating  to  the  said  copart- 
nership, or  the  business  or  affairs  thereof;  and  generally  to  do 
and  perform  any  other  act,  deed,  matter,  or  thing  whatsoever, 
relating  to  the  premises,  as  fuily  and  effectually,  to  all  intents 
and  purposes  whatsoever,  as  the  said  A  might  or  could  do  in  his 
own  proper  person,  in  case  these  presents  had  not  been  executed, 
and  the  said  A  was  personally  acting  therein;  and  whatsoever 
the  said  B  shall  lawfully  do,  or  cause  to  be  done,  in  and  about 
the  premises,  the  said  A  doth  hereby  for  himself,  his  heirs,  exe- 
cutors, and  administrators,  covenant,  promise,  and  agree  with 
and  to  the  said  B,  his  executors  and  administrators,  to  allow, 
ratify,  and  confirm.     And  the  said  A  doth  hereby,  for  himself. 


393  APPENDIX. 

his  heirs,  executors,  and  administrators,  covenant,  declare,  and 
agree  with  and  to  the  said  B,  his  executors,  administrators,  and 
assigns,  that  he  the  said  A  hath  not,  at  any  time  heretofore,  made, 
done,  committed  or  executed,  or  knowingly  or  willingly  per- 
mitted or  suffered,  any  act,  deed,  matter,  or  thing  whatsoever, 
whereby,  or  by  reason  or  means  whereof  the  said  part  or  share, 
and  premises  hereby  granted,  released,  and  assigned,  or  intended 
so  to  be,  are,  is,  can,  shall,  or  may  be  in  any  wise  impeached, 
charged,  affected,  or  encumbered:  and  further,  that  he  the  said 
A,  his  executors  or  administrators,  shall  and  will,  from  time  to 
time,  and  at  all  times  hereafter,  upon  every  reasonable  request, 
and  at  the  costs  and  charges  of  the  said  B,  his  executors,  admin- 
istrators, or  assigns,  make,  do,  and  execute,  or  procure  to  be 

made,  done,  and  executed,  all  such  further  and  other 
r  *394  1  lawful  and  reasonable  acts,  deeds,  matters,  and  *things, 

for  the  better  and  more  effectually  granting,  releasing, 
assigning,  and  assuring  the  said  part  or  share,  and  premises  here- 
by granted,  and  released,  and  assigned,  or  intended  so  to  be,  unto 
the  said  B,  his  executors,  administrators,  and  assigns,  and  for 
enabling  him  and  them  %o  recover  and  receive  the  same  to  and 
for  his  and  their  own  use  and  benefit,  according  to  the  true  intent 
and  meaning  of  these  presents,  as  by  the  said  B,  his  executors, 
administrators,  or  assigns,  or  his  or  their  counsel  learned  in  the 
law,  shall  be  reasonably  devised,  or  advised  and  required.  In 
witness,  &c. 


No.  V. 


DEED  of  DISSOLUTION  of  a  Partnership  behveen  Two 
Persons,  where  One  of  them  continues  to  carry  on  the  Busi- 
ness. 

This  Indenture,  made.  Sic,  between  A,  of,  &c.  of  the  one  part, 
and  B,  of,  &c.  of  the  other  part.  Whereas,  by  articles  of  agree- 
ment bearing  date  the day  of ,  and  made  or  ex- 
pressed to  be  made  between  the  said  A  of  the  one  part,  and  the 
said  B  of  the  other  part,  they  the  said  A  and  B  mutually  agreed 
to  become  partners  together  in  the  trade  or  business  of  a  book- 
seller and  stationer,  under  the  firm  of  ,  for  the  term  of 

twenty-one  years,  to  be  computed  from  the  day  of  the  date  there- 
of, if  the  said  A  and  B  should  so  long  live,  but  determinable 
nevertheless  at  any  time  during  the  said  term,  upon  either  of  the 
said  parties  giving  six  calendar  months'  notice,  in  writing,  to  the 
other  of  them,  of  his  desire  to  dissolve  or  discontinue  the  same; 
and  it  was  by  ihe  said  articles  agreed,  that  upon  such  dissolution 
the  accounts  of  the  said  copartnership  should  be  settled  and  ad- 


APPENDIX. 


394 


justed  up  to  the  day  of  the  expiration  of  the  said  notice,  in  like 
manner  as  if  the  said  copartnership  had  expired  by  effluxion  of 
time,  and  that  the  estate  and  interest  of  the  party  giving  such  no- 
tice of  and  in  the  stock  in  trade,  monies,  debts,  and  effects  of  the 
said  copartnership,  should  be  taken  by  and  assigned  to  the  other 
of  the  said  copartners  at  a  fair  vailuation  and  appraisement,  and 
that  all  proper  deeds,  conveyances,  acts,  matters,  and  things, 
should  be  made  and  done  by  and  between  the  said  parties,  which 
should  be  requisite  to  carry  such  dissolution  and  assignment  into 
effect :  And  whereas  the  said  parties,  in  pursuance  of  the  said  re- 
cited articles  of  agreement,  have  carried  on  the  said  trade  or  busi- 
ness in  copartnership  together  until  the  day  of 

now  last  past:  And  whereas  it  has  been  agreed  by  and  between 
the  said  A  and  B,  that  the  copartnership  subsisting  between  them 
under  the  said  recited  articles  of  agreement  shall  be  dissolved  from 
the  day  of  the  date  hereof,  and  that  the  copartnership  estate  and 
effects  shall  be  assigned  to  and  henceforth  become  the  property 
of  the  said  B:  And  whereas,  in  pursuance  and  part-perform- 
ance of  the  said  agreement,  the  stock  in  trade  and  effects  of 
the  said  copartnership  have  been  valued   and  appraised  at  the 

sum  of  pounds,  with  which  valuation  and  appraisment 

the  said  A  and  B  are  respectively  satisfied,  as  they  do 

hereby  respectively  testify  and  *declare;  and  it  has  been   [  *395  ] 

agreed  that  the  said  stock  in  trade  and  effects  shall  be 

taken  by  the  said  B,  at  the  sum  of pounds,  being  one  moiety 

of  the  said  sum  of pounds,  and  paid  for  by  him  to  the  said 

A  at  the  expiration  of  one  year  from  the  date  of  these  presents; 

and  that  the  said  sum  of pounds  shall  be  secured  to  the  said 

A,  by  the  bond  or  obligation  in  writing  of  him  the  said  B:  And 
whereas,  in  pursuance  and  further  performance  of  the  said  agree- 
ment, the  said  B  hath  this  day  delivered  to  the  said  A  his  certain 
bond  or  obligation  for  securing  to  him  the  payment,  at  the  time 
and  in  manner  aforesaid,  of  the  principal  money  so  agreed  to  be 
secured  to  him  as  hereinbefore  is  mentioned  and  recited.  Now 
this  indenture  witnesseth,  that  in  pursuance  and  further  perform- 
ance of  the  said  agreement,  and  in  consideration  of  the  premises, 
they  the  said  A  and  B,  with  the  mutual  assent  and  consent  of 
each  other,  do,  by  these  presents,  determine  and  dissolve  the  said 
copartnership  in  which  they  have  been  so  engaged  as  hereinbe- 
fore is  mentioned,  as  from  the  day  of  the  date  of  these  presents, 
and  declare  the  same  to  be  at  an  end,  to  all  intents  and  purposes 
whatsoever,  and  that  the  covenants  and  agreements  expressed  and 
contained  in  the  said  hereinbefore  recited  articles  of  copartner- 
ship shall  also  cease  and  determine,  as  from  the  day  of  the  date 
hereof.  And  this  indenture  further  witnesseth,  that  in  pursuance 
and  further  performance  of  the  said  agreement  on  the  part  of  the 
said  A,  and  in  consideration  of  the  premises,  he  the  said  A  hath 
bargained,  sold,  assigned,  transferred,  and  set  over,  and  by  these 


395  APPENDIX. 

presents  doth  bargain,  sell,  assign,  transfer,  and  set  over,  unto  the 
said  B,  his  executors,  administrators,  and  assigns,  all  that  the 
moiety  or  half  part,  (the  whole  into  two  equal  parts  being  con- 
sidered as  divided,)  and  all  other  the  share  and  proportion  of  him 
the  said  A,  of  and  in  all  and  singular  the  joint  stock  in  trade, 
goods,  merchandises,  estate,  and  effects  whatsoever  belonging  to 
the  said  copartnership  hereby  dissolved,  or  to  the  said  parties 
hereto  in  respect  thereof;  and  also  all  and  every  the  book  and 
other  debts,  and  sum  and  sums  of  money  whatsoever,  due  and 
owing  or  belonging  to  the  joint  trade  or  copartnership,  or  to  the 
said  parties,  or  him  the  said  A,  on  account  thereof,  and  all  the 
estate,  right,  title,  interest,  trust,  property,  possession,  benefit, 
claim,  and  demand  whatsoever,  both  at  law  and  in  equity,  of  him 
the  said  A,  of,  in,  to,  or  concerning  the  same;  and  also  of,  in,  to, 
or  concerning  the  entirety  of  the  said  stock  in  trade,  estate,  and 
effects,  and  every  or  any  part  thereof,  and  of,  in,  and  to  all  and 
singular  the  books  of  account,  bills,  notes,  securities,  and  other 
papers  and  writings  whatsoever  relating  thereto,  or  to  any  part 
thereof,  or  to  the  said  joint  trade  or  copartnership.  To  have  and 
to  hold  the  said  moiety  or  half  part,  &c.,  or  other  share  of  or  in 
the  said  stock  in  trade,  debts,  and  effects,  and  all  and  singular 
other  the  premises  hereby  assigned  or  expressed,  or  intended  so 
to  be,  unto  him  the  said  B,  his  executors,  administrators,  and  as- 
signs, to  and  for  his  and  their  own  proper  use  and  benefit,  abso- 
lutely and  for  ever.  And  the  said  A  doth  hereby,  for  himself, 
his  heirs,  executors,  and  administrators,  covenant,  promise,  and 
agree  to  and  with  the  said  B,  his  executors,  administrators,  and 
assigns,  in  manner  following;  (that  is  to  say,)  that  all  monies, 
debts,  and  other  effects,  which  are  now  belonging   or   due   or 

owing  to  the  said  copartnership,  so  hereby  dissolved  as 
r  *396  ]   ^aforesaid,  shall  be  received,  collected,  and  got  in  by 

the  said  B,  his  executors,  administrators,  or  assigns,  at 
the  sole  risk  and  costs  of  him  the  said  B ;  and  that  for  that  pur- 
pose the  said  B,  his  executors,  administrators,  and  assigns,  shall 
and  may  commence,  take,  and  adopt  such  actions,  suits,  measures, 
and  proceedings,  as  to  him  or  them  shall  seem  expedient  and 
proper;  and  that  for  the  better  enabling  him  and  them  to  receive, 
collect,  get  in,  and  recover  the  same  monies,  debts,  and  effects, 
he  the  said  A,  his  executors  and  administrators,  shall  and  will, 
from  time  to  time,  and  at  all  times  hereafter,  permit  and  suffer 
his  or  their  name  or  names  to  be  made  use  of  in  all  actions,  suits, 
and  other  proceedings  whatsoever,  which  shall  or  may  be  com- 
menced or  prosecuted  by  him  the  said  B  in  relation  thereto,  in 
such  manner  and  form  as  he  the  said  B,  his  executors,  adminis- 
trators, or  assigns,  or  his  or  their  counsel  learned  in  the  law,  shall 
reasonably  require  in  that  behalf,  (he  the  said  A  being  from  time 
to  time  well  and  satisfactorily  saved  harmless,  and  indemnified 
from  and  against  all  costs,   damages,   and   expenses  by  reason 


APPENDIX.  396 

thereof) ;  and  that  he  the  said  A,  his  executors  and  administrators, 
shall  not,  nor  will  at  any  time  or  times  hereafter,  by  himself  or 
themselves  respectively,  or  by  any  agent  or  agents,  receive  or 
take  into  his  or  their,  or  any  of  their  possesgion,  any  of  the  same 
monies,  debts,  and  effects,  or  any  part  thereof  respectively,  nor 
release  or  discharge  the  same,   or  any  of  them,  nor  release,  dis- 
continue, or  become  nonsuit  in  any  action  or  suit  which  shall  be 
brought  or  commenced  for  the  recovery  of  the  same  monies, 
debts,  and  effects,  or  any  of  them,  or  any  part  thereof  respective_- 
ly,  without  the  consent  in  writing  of  the  said  B,  his  executors, 
administrators,  or  assigns,  for  that  purpose  first  had  and  obtained, 
nor  do,  execute,  commit,  or  suffer,  or  be  party  or  privy  to  any 
act,  deed,  matter,  or  thing  whatsoever,  whereby  or  by  means 
whereof  the  said    B,  his   executors,  administrators,  or   assigns, 
shall  be  hindered  or  obstructed  from  receiving,  collecting,  get- 
ting in,  or  recovering  the  said  monies,  debts,  and  effects,  or  any 
of  them,  or  any  part  thereof;  and  further,  that  he  the  said  A,  his 
executors  and  administrators,  shall  and  will,  from  time  to  time, 
and  at  all  times  hereafter,  at  the  request,  costs,  and  charges  in 
the  law  of  the  said  B,  his  executors,  administrators,  and  assigns, 
make,  do,  and  execute,  or  cause  or  procure  to  be  made,  done, 
and  executed,  all  and  every  such  further  and  other  lawful  and 
reasonable    acts,   deeds,   assignments,   conveyances,   assurances, 
matters,  and  things  whatsoever,  not  only  for  the  further  and  more 
perfectly  or   satisfactorily   assigning   and  assuring   the  part   or 
share,  and  premises,  hereby  assigned,  or  expressed,  or  intended 
so  to  be,  unto  the  said  B,  his  executors,  administrators,  and  as- 
signs, but  also  for  the  better  enabling  him  and  them  to  recover, 
receive,  possess,  and  enjoy  the  same,  to  and  for  his  and  their  own 
proper  use  and  benefit,  according  to  the  true  intent  and  meaning 
of  these  presents.     And  the  said  B,  for  himself,  his  heirs,  execu- 
tors, and  administrators,  doth  hereby  covenant,  promise,  and  agree, 
with  and  to  the  said  A,  his  executors  and  administrators,  that  he 
the  said  B,  his  executors,  administrators,  and  assigns,  shall  and 
will  well  and  truly  pay  and  satisfy,  or  cause  to  be  paid   and 
satisfied,  all  and  every  the  debt  and  debts,  and   sum  and  sums 
of  money,  bill  and  bills   of  exchange,  dues,  claims, 
and  lawful  demands  whatsoever,  *which  now  is  or  are,  [  *397  ] 
or  which  shall  or  may  at  any  time  hereafter  be  or  be- 
come, due  or  payable  by  or  from  them  the  said  A  and  B,  or  either 
of  them,  for  or  in  respect  of  the  said  copartnership,  or  the  stock 
or  effects  thereof,  and  shall  and  will,  from  time  to  time,  and  at  all 
times  hereafter,  well  and  sufficiently  save,  defend,  keep  harmless 
and  indemnified,  him  the  said  A,  his  heirs,  executors,  and  ad- 
ministrators, and  his  and  their  lands  and  tenements,  goods  and 
chattels,  of  and  from  the  same,  and  of  and  from  all  and  all  manner 
of  actions,  suits,  and  other  proceedings  wliatsoever,  which  shall  or 
may  be  had  or  prosecuted  against  him  the  said  A,  his  executors 

64 


397  APPENDIX. 

or  administrators,  either  solely,  or  jointly  with  the  said  B,  his 
executors  or  administrators,  in  respect  thereof ;  and  shall  and  will, 
from  time  to  time  and  at  all  times  hereafter,  at  the  reasonable 
request,  and  at  the  costs  and  charges  of  the  said  A,  his  executors, 
administrators,  and  assigns,  produce  and  show  forth  unto  him  or 
them,  or  to  any  other  person  or  persons  by  him  or  them  lawfully 
authorised  in  that  behalf,  or  permit  and  sutler  him,  them,  or  any 
of  them,  at  the  counting-house  of  the  said  B,  to  take  copies  or 
abstracts  of  all,  every,  or  any  receipts,  acquittances,  discharges, 
documents,  and  evidences  of  any  payment  or  payments  made  of, 
for,  or  on  account  of  any  debt  or  sum  now  due,  or  growing  or 
becoming  due,  from  the  said  copartnership,  or  him  the  said  A  in 
respect  thereof,  for  the  purpose  of  manifesting  and  authenticating 
the  payment  of  the  same.  And  also  that  he  the  said  B,  his  ex- 
ecutors or  administrators,  shall  and  will  well  and  truly  pay,  or 
cause  to  be  paid,  unto  the  said  A,  his  executors,  administrators, 

or  assigns,  the  said  sum  of pounds,  for  which  the  said  bond 

of  him  the  said  B  was  so  given  as  aforesaid,  at  the  time  therein 
appointed  for  the  payment  of  the  same.  And  further,  that  he  the 
said  B,  his  executors,  administrators,  and  assigns,  shall  and  will, 
from  time  to  time,  and  all  times  hereafter,  save  harmless  and  keep 
indemnified  the  said  A,  his  heirs,  executors,  and  administrators, 
from  and  against  all  costs,  charges,  damages,  and  expenses,  which 
he  or  they  shall  sustain  or  be  put  unto,  or  be  liable  to  sustain  or 
be  put  unto,  by  reason  or  on  account  of  his  or  their  name  or  names 
being  used  in  any  action  or  proceeding,  or  other  matter  or  thing, 
in  pursuance  of  the  power  hereinbefore  for  that  purpose  con- 
tained, or  otherwise,  on  account  of  the  assignment  hereinbefore 
made.  And  this  indenture  lastly  witnesseth,  that  in  pursuance 
and  further  performance  of  the  said  agreement,  and  in  considera- 
tion of  the  premises,  each  of  them  the  said  A  and  B  hath  ac- 
quitted, released,  and  for  ever  discharged,  and  by  these  presents 
doth  acquit,  release,  and  for  ever  discharge,  the  other  of  them, 
his  heirs,  executors,  and  administrators,  and  his  and  their  eatates 
and  effects  whatsoever  and  wheresoever,  of  and  from  all  actions, 
suits,  claims,  and  demands  whatsoever,  which  he  hath,  or  other- 
wise might  or  could  have  against  or  upon  the  other  of  them,  his 
heirs  executors,  or  administrators,  and  his  and  their  estates  and 
effects  whatsoever  and  wheresoever,  for,  or  by  reason,  or  on  ac- 
count of  the  said  copartnership  hereby  dissolved  as  aforesaid,  or 
for,  or  by  reason,  or  on  account  of  any  act,  deed,  matter,  or  thing 
whatsoever  in  any  wise  relating  thereto,  other  than  and  except 
such  actions,  suits,  claims,  and  demands,  as  shall  or  may  arise 
upon,  or  by  virtue  of  these  presents.     In  witness,  &c. 


APPENDIX. 


398 


*No.  VI.  [*398] 

NATUSCH  V.  IRVING  AND  OTHERS. 

The  plaintiff  on  the  behalf  of  himself  and  all  others  the  share- 
holders, members,  or  partners  of  the  Jilliance  B?^itish  and  Fo- 
reign Life  and  Fire  Assurance  Compayiy,  filed  this  bill  against 
the  defendants,  who  were  the  presidents  and  directors  of  that 
company,  praying,  amongst  other  things,  a  dissolution  of  the  part- 
nership, and,  if  necessary,  a  receiver,  and  an  injunction  to  res- 
train the  defendants,  and  the  clerks,  agents,  and  servants  of  the 
company,  from  effecting  marine  insurances,  or  transacting  the 
business  of  underwriting  or  insuring  ships,  or  their  cargoes  or 
freight,  against  the  perils  of  the  sea,  and  from  lending  money  on 
bottomry,  in  the  name  or  on  the  account  of  the  company,  and  from 
using  the  name  of  the  company  for  such  purposes,  and  also  from 
carrying  on  the  business  of  underwriting  or  lending  money  on 
bottomry  in  any  other  name  or  firm  at  the  place  of  business 
where  the  business  of  the  company  had  been  hitherto  carried  on, 
and  from  applying  the  capital  of  the  company  to  any  of  such 
purposses. 

The  bill  stated,  that  in  the  month  of  February  1824  the  de- 
fendant Rothschild  set  on  foot  a  plan  for  the  formation  of  the 
above-mentioned  company,  intimating  that  applications  for  shares 
were  to  be  made  to  himself  or  to  his  agent  Mr.  Cohen.  The  plain- 
tiff shortly  afterwards  applied  to  become  a  shareholder,  and  re- 
ceived horn  Rothschild i\\e  following  answer: — "2.  New  Court, 
Swithin's  Lane,  1 5th  March  1S24. — I  beg  to  refer  you  to  the 
annexed  prospectus,  and  to  inform  you  that  your  name  is  inserted 
for  fifteen  shares  in  the  Alliance  British  and  Foreign  Life  and 
Fire  Assurance  Comjjany.  You  will  please  to  pay,  on  or 
before  Friday  the  19th  instant,  10/.  per  share  at  the  company's 
office,  pro  tempore,  No.  4,  New  Court,  Swithin's  Lane.  The 
success  of  all  establishments  of  this  description  must  necessarily 
depend  upon  the  individual  exertions  of  the  proprietary,  but 
calculating  (as  the  presidents  and  directors  confidently  do)  upon 
such  exertions  on  the  part  both  of  their  foreign  and  British 
shareholders,  they  feel  no  hesitation  in  predicting  that  this  in- 
stitution will  speedily  become  one  of  the  first  in  Europe  both  in 
profit  and  utility."  The  prospectus  which  accompanied  this 
letter  was  headed  and  entitled,  "  The  Alliance  British  and  Fo- 
reign Fire  and  Life  Assurance  Company,  capital  5,000,000/. 
sterling,"  and  stated  the  defendants  to  be  the  presidents  and 
directors  of  the  company.  The  body  of  it  was  thus  expressed: — 
"The  object  of  this  institution  is  to  combine  the  highest  public 
utility  with  the  greatest  individual  benefit  to  the  proprietors. 
It  is  confidently  expected  this  will  be  attained  in  a  greater  de- 
gree than  has  ever  yet  been  realized,  owing  to  the  extensive 


398  APPENDIX. 

connections,  both  foreign  and  domestic,  of  the  parties  with  whom 
the  company   originates,   and  the  large  capital  to  be  invested 
therein,  by  means  of  which  the  company  will  be  able 
[  *399  ]   to  avail  *itself  of  every  opportunity  beneficial  to  its  in- 
terests, and  to  defray  its  expenses  with  the  least  possible 
diminution  of  profits.      The  following  is  an  outline  of  the  plan 
upon  which  the  institution  is  intended  to  be  conducted,  which 
plan  will  be  further  matured  by  the  presidents  and  directors,  un- 
der the   ablest  legal  and  professional  advice,  and  will  be  com- 
pleted in  such  a  way  as  counsel  may  recommend;  and  the  shares 
are  tendered  to  the  parties,  who  have  offered  to  subscribe  for 
them,  upon  this  express  condition,  that  all  further  details  shall  re- 
main with  the  presidents  and  directors,  and  that  the  shareholders 
shall  execute  such  deed  or  deeds  as  may  be  deemed  requisite." 
The  prospectus  then  stated,  amongst  other  things,  that  the  capi- 
tal was  to  be  divided  into  fifty  thousand  100/.  shares;  that  every 
shareholder,  as  the  condition  of  holding  his  shares,  would  be  re- 
quired to  insure  a  sum  equal  to  the  amount  of  his  subscription  in 
the  Fire,  or  1000/.  in  the  Life  department  of  the  company;  and 
that  the  company  would  commence  business  on   Tuesday  the 
23d  of  March  1824,  under  the  conduct  of  the  five  presidents  and 
sixteen  directors  (those  presidents  and  directors  being  the  defen- 
dants), who  would  unitedly  form  the  Board  of  Direction.     After 
many  other  details  which  it  is  unnecessary  here  to  enumerate, 
the  prospectus  proceeded  in  these  words:     "In  addition  to  the 
specified  objects  of  the  institution,  namely  Fire  and  Life  assur- 
ances, it  is  intended  that  the  company  shall  grant  life  annuities, 
endowments  for  infants,  and  benefit  policies  in  all  cases  connect- 
ed with  life  contingencies,  and  shall  avail  itself  of  the  advantage 
continually  offering  in  the  purchase  q/"  life  contingent  risks,  and 
such  other  descriptions  of  property  as  the  law  may  sanction.^' 
On  the  faith  of  the  repixsentations  contained  in  the  prospectus, 
the  plaintiff"  accepted  the  offer  of  the  fifteen  shares,  and  on  the 
19th  March  he  paid  at  the  company's  office  the  sum  of  150/., 
being  the  amount  of  the  call  of  10/.  on  each  of  his  shares.     On 
that  occasion  he  received  a  printed  certificate  as  follows :     "./^Z- 
liance  British  and  Foreign  Life  and  Fire  Assurance  Com- 
pany, No.  4.  Neiv  Court,  St.  Swithin's  Lane.     Capital,  five 
millions  sterling.     This  is  to  certify  that  Frederick  Natusch, 
Esq.  of  St.  Stvithin's  Lane,  has  become  a  subscriber  for  fifteen 
shares  of  100/.  each  in  the  Alliance  British  and  Foreign  Life 
and  Fire  Assurance  Company,  on  which  ten  pounds  per  cent, 
have  been  paid,  and  that  on  executing  such  deed  or  deeds  as  the 
Board  of  Direction  shall  deem  requisite  for  furthering  the  objects 
stated  in  the  prospectus,  the  said  Frederick  Natusch,  Esq.,  will 
be  entitled  as  a  proprietor  of  the  said  shares  to  all  the  benefits  and 
emoluments  thereof     This  certificate  to  be  void,  and  the  deposit 
to  be  forfeited,  on  failure  to  execute  such  deed  or  deeds  within 


APPENDIX.  399 

three  months  after  notice  in  the  London  Gazette.  London, 
24th  March,  1S24.  —  N.  M.  Rothschild  entered  in  the  com- 
pany's books  L.  D.,  (no  assignment  is  valid  unless  regularly- 
made  in  the  books  of  the  company)  No.  35,220  and  35,234." 
The  plaintiff  also  effected  an  assurance  on  his  life  for  the  sum  of 
1500/.,  and  on  the  31st  of  March  he  paid  the  premium  required 
for  such  assurance. 

On  the  27th  August  1824,  advertisements  appeared  in  some 
of  the  public  papers,  .which  purported  that  the  Alliance  Com- 
pany would,  on  the  1st  of  Septeinber,  commence  the 
business  of  marine  *insurance,  and  the  plaintiff  in  con-   [  *400  ] 
sequence  wrote  on  the  same  day  to  Mr.  Hamilton,  the 
secretary  of  the  company,  requesting  to  be  informed  whether  the 
fact  was  so;  and  stating  that  he  conceived  such  a  proceeding 
would  materially  affect  his  interest,  not  only  as  a  partner,  but  in 
respect  of  the  contract  of  insurance  he  had  effected  with  the  com- 
pany on  his  life.     To  this  letter  he  on  the  30th  of  the  same  month 
received  the  following  answer  from  the  secretary: — "  I  have  laid 
your  letter  of  the  27th  instant  before  the  Board  of  Direction  of 
the  Alliance   Company,  and  am  desired  by  them  to  return  you 
the  following  answer  to  it.    The  rumour  to  which  you  allude  is 
well  founded — the  company  will  commence  marine   assurance 
business  on  the  1st  of  September.     The  Board,  however,  do  not 
conceive  that  your  interest  can  be  prejudiced  by  this  determina- 
tion. It  is  true  that  15  shares  were  assigned  to  you  by  Mr.  Roths- 
child at  your  particular  request,  upon  which  shares  you  have 
paid  a  deposit  of  10/.  per  cent.;  but  as  you  have  not  executed  the 
deed  of  settlement,  and  as  your  name  is  not  enrolled  under  the 
act,  you  are  not  subjected  to  any  of  the  liabilities  attached  to  the 
company.     If  you  are  dissatisfied  with  the  course  intended  to  be 
pursued,  you  may  receive  back  your  deposit  with  interest  from 
the  date  of  its  payment ;   and  the  Board  request  that  you  will 
consider  this  as  a  regular  tender  thereof.     With  regard  to  the  in- 
surance effected  by  you  on  your  life,  and  which  (looking  either 
at  the  date  of  the  proposal  for  or  of  the  completion  of  it)  must 
have  been  so  effected,  with  knowledge  on  your  part  that  the  com- 
pany intended  to  carry  on  the  business  of  marine  insurance,  the 
Board  are  ready  and  willing  to  cancel  the  policy,  and  return  the 
premium,  and  to  assist  you  in  transferring  your  assurance  to  any 
other  office  in  whose  solidity  you  may  have  more  confidence  than 
in  that  of  the  Alliance.^'     After  receiving  this  communication, 
the  plaintiff  on  the  31st  August  rejoined  as  follows  :    "  Your  in- 
formation, that  I  have  not  executed  the  deed  of  settlement,  was 
the  first  notice  I  had  received  that  any  such  deed  had  been  pre- 
pared,(a)  and  upon  that  part  of  the  subject  it  is  unnecessary  to 

(a)  It  was  stated  in  the  bill  that  notice  of  a  deed  having  been  prepared 
was  inserted  in  the  London  Gazette  of  the  10th  of  Ait^usf,  but  that  the  plain- 
tiff had  not  at  the  time  seen  or  heard  of  it. 


400  APPENDIX. 

say  more,  than  that  I  am  ready  to  execute  any  deed,  in  con- 
formity with  the  prospectus  annexed  to  the  receipt  signed  by 
Mr.  Rothschild  for  my  deposit.  The  arrangement  respecting 
the  enrolment  I  do  not  understand,  and  therefore  do  not  enter 
into  it.  It  is,  I  conceive,  competent  to  me  to  insist,  that  the  bu- 
siness in  which  I  am  a  partner  shall  be  carried  on  according  to  the 
agreement  which  united  the  partners  together;  and  I  cannot  think 
my  doing  so  will  entitle  the  managers  of  that  partnership  to  pay 
me  out  my  capital,  and  deprive  me  of  a  share  in  a  concern  of 
which  I  have  the  highest  opinion.  And  therefore  I  do  most  re- 
spectfully, but  most  decidedly,  require  that  the  presidents  and 
directors  abstain  from  any  contracts  or  engagements  relating  to 
marine  insurance,  as  not  being  contemplated  by  myself  and  those 
who  joined  the  company  upon  the  terms  of  the  prospectus  re- 
ferred to;  and  I,  as  decidedly,  require  an  undivided  attention, 
on  the  part  of  the  managers  and  the  officers  of  the 
r  *401  1  institution,  to  the  *objects  defined  in  the  prospec- 
tus referred  to.  In  answer  to  the  last  paragraph  of 
your  letter,  I  beg  to  state  that,  so  early  as  February  last,  I  offer- 
ed to  insure  my  own  life  with  the  Alliance  Company,  so  soon 
as  the  arrangements  could  be  completed,  and  that  neither  then 
nor  at  any  subsequent  period  did  I  conceive  that  it  was  in  the 
power  of  the  managers  to  undertake  risks  foreign  to  the  purpose 
for  which  the  company  was  formed..  As  to  marine  insurances, 
my  own  determination  not  to  be  involved  in  them,  as  a  member 
of  the  Alliance  partnership,  was  very  impressively  stated  to  Mr. 
Rothschild,  on  occasion  of  an  interview  had  with  him  by  his 
own  desire  on  the  subject  of  my  petition  to  Parliament.  The 
presidents  and  directors  will  do  me  the  justice  to  feel  that  my 
conduct  has  been  plain  and  consistent.  I  have  throughout  ap- 
proved the  institution  as  a  partnership  for  life  and  fire  insurance 
and  the  purchase  of  annuities,  and  as  distinctly  disapproved  the 
dangerous  business  of  marine  insurance  being  appended.  I  have 
therefore  endeavoured,  and  shall  continue  to  preserve  my  full 
share  of  the  full  benefit  to  be  derived  from  the  former,  in  a  dis- 
tinct insulated  exertion  of  the  influence  of  the  partners;  and  I 
have  resisted,  and  shall  to  the  utmost  of  my  power  oppose,  the 
latter  unauthorized  employment  of  the  capital  of  the  company, 
and  the  time  and  talents  of  its  managers  and  officers."  The 
plaintiff  subsequently  attended  for  the  purpose  of  executing  the 
deed  of  settlement;  but,  on  discovering  that  the  only  deed  pre- 
pared for  execution  by  the  subscribers  was  one  which  contained 
a  recital  of  the  repeal  of  so  inuch  of  the  act  of  the  6  Geo.  I.  (a) 
as  prohibited  the  effecting  of  marine  assurances  by  partnerships 
or  companies,  and  that  it  was  intended  to  extend  the  objects  of 
the  Alliance  Company  to  marine  insurances  and  lending  money 

(a)  5  Geo.  4.  c.  114.     This  act  received  the  royal  assent  on  the  24th  June, 
1824. 


APPENDIX.  401 

on  bottomry,  and  that  the  deed  contained  the  necessary  provi- 
sions for  enabling  the  company  to  carry  on  such  business,  he 
refused  to  execute  it,  as  not  being  conformable  to  the  terms  on 
which  the  company  was  formed.  In  pursuance  of  the  advertise- 
ments, the  defendants,  on  the  1st  of  September,  1824,  com- 
menced, and,  at  the  time  of  the  filing  of  the  bill,  continued  to 
carry  on  the  business  of  underwriting. 

The  bill,- — after  stating  the  various  facts  already  mentioned, 
the  willingness  of  the  plaintiff  to  execute  any  deed  which  the 
defendants  might  lawfully  require  for  furthering  the  objects 
stated  in  the  prospectus,  and  denying  that  he  acquiesced  in  and 
submitted  to  the  intention  of  the  defendants  to  extend  the  busi- 
ness and  transactions  of  the  company  to  marine  insurance,  and 
to  the  lending  of  money  on  bottomry, — charged,  that  a  deed 
containing  provisions  for  enabling  the  defendants,  as  presidents 
and  directors  of  the  company,  to  undertake  the  business  of 
marine  insurance,  was  not  a  deed  of  settlement  authorised  by  the 
terms  upon  which  the  company  was  formed;  that  the  engaging 
in  such  business  would  render  all  the  members  of  the  company 
liable  to  the  bankrupt  laws,  though  not  otherwise  subject  thereto; 
that  all  the  defendants,  other  than  Rothschild,  were  privy  and 
assented  to  the  publishing  of  the  prospectus,  and  autho- 
rised the  writing  of  the  *letter  of  the  said  Rothschild,  [  *402  ] 
and  adopted  all  his  acts;  that  various  copies  of  the  pros- 
pectus were  circulated  by  and  under  the  directions  of  the  defen- 
dants; and  that  the  extension  of  the  transactions  and  business  of 
the  company  to  marine  insurance  or  underwriting  was  in  direct 
contravention  with  the  true  and  obvious  construction  and  whole 
scope  of  the  prospectus  and  other  documents. 

The  injunction  was  applied  for,  before  answer,  upon  the  usual 
certificate  and  affidavit.  Counter  affidavits  were  produced  on  the 
part  of  the  defandants,  by  one  of  which  it  was  stated,  that  shortly 
after  it  had  been  determined  to  form  the  Alliance  Company, 
the  existence  of  an  intention  to  apply  for  an  act  of  parliament  or 
charter,  enabling  the  company  to  effect  marine  insurance,  was 
currently  reported,  and  was  a  common  subject  of  conversation 
amongst  mercantile  men.  The  affidavit  also  alleged  that,  about 
the  end  of  March,  1824,  repeated  allusions  were  made  to  the 
same  subject  in  the  daily  papers,  and  further  it  stated  circum- 
stances which  would  lead  to  the  inference,  that  the  plaintiff  must, 
about  the  time  he  became  a  shareholder,  have  been  aware  of  the 
determination  of  the  defendants  to  extend  the  objects  of  the  com- 
pany to  marine  insurance.  It  was  likewise  insinuated  that  the 
suit  was  instigated  and  promoted  by  the  committee  of  under- 
writers at  Lloyd's,  and  that  it  was  intended  that  the  costs  and 
expenses  thereof  should  be  borne  and  paid  by  them.  The  in- 
junction being  asked,  the  Lord  Chancellor  directed  the  plaintiff 
to  answer  the  affidavits  filed  for  the  defendants,  with   liberty  for 


402  APPENDIX. 

them  to  reply,  and  the  defendants  were  ordered  to  discontinue 
their  advertisements  in  the  mean  time,  and  to  confine  their  busi- 
ness to  as  few  risks  as  possible.  In  consequence  of  this  direction 
the  plaintiff  filed  a  further  affidavit,  in  which  he  denied  havfng 
received  any  notice  or  intimation,  at  or  before  the  time  he  be- 
came a  shareholder,  that  the  business  of  marine  insurance  was  to 
form  one  of  the  objects  of  the  company.  He  also  stated  therein 
that,  on  the  5th  June,  1S24,  after  the  bill  for  the  repeal  of  the  act 
of  the  6  Geo.  1.  had  been  read  a  second  time  in  the  House  of 
Commons,  he  had  an  interview  with  the  defendant  Rothschild^ 
and  then  explained  in  very  strong  terms  his  opinion  of  the  dan- 
ger and  impolicy  of  a  joint  stock  company  undertaking  the  risks 
of  marine  insurance;  and  at  the  same  time  intimated  his  entire 
disapprobation  of  the  company  engaging  in  such  business,  and  his 
determination  to  oppose  the  same  by  every  legal  means.  He 
likewise  stated,  that  so  far  from  having  either  directly  or  indi- 
rectly acquiesced  in  the  company's  engaging  in  the  business  of 
underwriting,he  not  only  remonstrated  with  the  defendsmt  Roths- 
child on  the  subject,  but  took  an  active  part  in  opposing  every 
measure  tending  to  enable  the  company  to  engage  in  such  busi- 
ness. Other  affidavits  were  filed  on  the  part  of  the  plaintiff,  in 
one  of  which  it  was  alleged,  that,  so  'far  from  its  being  a  matter 
of  notoriety  that  the  defendants  intended  to  add  the  business  of 
marine  insurance  to  the  objects  specified  in  the  prospectus,  the 
solicitor  employed  for  the  company,  in  the  course  of  passing  a 
bill  introduced  into  the  House  of  Lords  for  the  purpose  of  enabling 

the  company  to  sue  and  be  sued  in  the  name  of  their 
r  *403  1  *chairman,  cautiously  abstained  from  avowing  any  such 

intention;  and  in  answer  to  a  question  addressed  to  him 
before  a  committee  of  Peers  on  the  said  bill,  whether  it  was  in- 
tended that  the  company  should  engage  in  the  business  of  marine 
insurance,  he  replied  that  he  knew  nothing  except  in  his  profes- 
sional capacity  of  solicitor  to  the  company,  and  submitted  that  he 
was  not  bound  to  disclose  what  came  to  his  knowledge  in  that 
character.  The  remainder  of  the  affidavits  produced  for  the 
plaintiff  were  made  by  shareholders  in  the  company,  who  assert- 
ed that  they  became  such  shareholders  upon  the  faith  and  credit 
of  the  prospectus,  in  which  the  business  and  objects  of  the  com- 
pany were  confined  to  fire  and  life  insurance,  and  other  life  risks, 
and  that  they  wholly  disapproved  of  and  never  acquiesced  in  the 
extension  of  the  concerns  of  the  company  to  maritime  insurance. 
The  defendants  filed  counter-affidavits,  and  amongst  them  one  by 
the  defendant  Rothschild,  in  which  he  insisted  that  the  plaintiff 
could  not,  in  offering  to  become  a  shareholder,  have  relied  upon 
the  statements  in  the  prospectus,  because  at  that  time  the  pros- 
pectus was  not  prepared,  and  it  was  not  issued  and  made  public 
until  the  15th  of  March.  He  admitted  having  had  an  interview 
with  the  plaintiff,  at  which  the  plaintiff  objected  to  the  company 


APPENDIX.  403 

extending  its  operations  to  marine  insurance,  but  denied  that  the 
plaintiff  stated  his  opinion  of  the  danger  or  impolicy  of  a  joint 
stock  company  undertaking  the  risks  of  marine  insurance.  The 
points  relied  upon  by  the  defendants,  as  affording  particular  an- 
swers to  the  plaintiff's  bill,  are  noticed  seriatim  by  the  Lord 
Chancellor,  and  it  is  therefore  unnecessary  to  repeat  them  here. 
His  lordship  being  furnished  with  all  the  papers,  was  pleased,  in 
Trinity  vacation,  1824,  to  forward  from  the  country  the  follow- 
ing remarks  upon  the  case: — 

"  The  repeal  of  the  act  of  George  I.  put  an  end  to  the  disa- 
bilities imposed  upon  societies  or  partnerships  as  to  underwriting 
against  marine  risks. 

"  That  repeal  could  not,  I  think,  operate  to  change  the  rules 
of  law  or  equity,  which,  as  rules  governing  partnerships,  would 
have  regulated  their  concerns  among  themselves,  if  such  repealed 
act  had  never  existed. 

"If  the  Alliance  Company,  which  the  act  of  the  17th  June, 
1824,  (a)  treats  as  Men  formed  to  affect  assurances  upon  lives  and 
survivorships,  and  against  loss  or  damage  by  fire,  and  represents 
that  several  persons  had  formed  themselves  into  a  company,  and 
raised  considerable  sums  of  money  in  order  to  effect  such  assur- 
ances, could  not  by  express  contract,  or  authority  by  implication 
vested  in  its  directors,  or  any  select  part  of  its  body,  engage  the 
partners  in  marine  risks;  and  if  the  plaintiff,  on  behalf  of  himself, 
and  others,  had  a  right  to  prevent  the  company,  as  that  com- 
pany, from  so  doing,  several  points  are  made  on  the  part  of  the 
defendants  against  the  plaintiff,  as  such  points  as  ought  to  operate 
to  discharge  his  complaint. 

"1.  It  is  urged  that  the  plaintiff  has  not  executed  the  deed  of 
settlement.  To  this  it  may  be  answered,  that  if  the 
company  *had  no  right  to  engage  him  in  marine  risks,  [  *404  ] 
they  had  no  right  to  tender  to  him  for  execution  any 
deed  which  did  so  engage  him;  and  that  if  the  prospectus 
and  certificate  are  to  be  considered  as  evidences  of  the  partner- 
ship contract,  the  certificate  allows  three  months  after  notice  in 
the  London  Gazette  for  execution.  The  deed  was  not  lying 
for  execution  till  the  10th  August  in  Mr.  Pearce's  office.  The 
plaintiff  represents  that  his  information  that  there  was  such  a 
deed  was  received  from  Mr.  Hamilton's  letter  of  the  30th 
Jiugust.{h) 

"  2.  That  the  plaintiff's  name  not  being  enrolled  under  the 

(c)  5  Geo.  4.  c.  137. 

(6)  In  the  margin  of  the  manuscript  his  lordship  wrote  as  follows:  "It 
seems  to  me  that  this  must  be  understood  to  be  a  deed  relative  to  fire  and  life 
assurances,  and  the  other  specified  objects,  and  those  only,  however  great 
might  be  the  powers  given  by  it  to  any  part  of  the  body  with  respect  to  such 
objects.  Mr.  Rothschild's  certificate  does  not,  it  may  be  said,  give  the  title 
to  benefits  and  emolumenis  till  the  deed  is  executed,  but  then  it  must  be  a 

65 


404  APPENDIX. 

act,  he  is  not  subject  to  any  of  the  liabilities  attached  to  the  com- 
pany. This  does  not  appear  to  be  the  true  construction  of  the 
act.  A  memorial  of  the  several  members  is  only  required  to  be 
enrolled  within  six  months;  and  if  the  act  is  to  be  taken  to  re- 
quire enrollment  sooner,  non-observance  of  the  act  could  not  free 
the  party  neglecting  to  observe  it  from  liabilities.  The  act  pro- 
vides, that  no  action  shall  be  brought  under  the  authority  of  the 
act  by  the  company  till  there  has  been  an  enrollment,  but  it  does 
not  negative  proceedings  against  the  company  or  its  members, 
and  the  7th  section  seems  to  proceed  upon  that  distinction.  If 
this  notion,  that  a  person  subscribing,  but  of  whose  name  a  me- 
morial has  not  been  rolled,  was  countenanced,  it  would  perhaps 
be  a  little  difficult  to  determine  who  are  the  partners  now  subject 
to  liabilities,  it  not  appearing  how  many  of  the  340  who  have 
executed  the  deed  in  respect  of  22,400  shares,(a)  or  how  many  of 
the  members  entitled  to  the  residue  of  the  50,000  shares,  have  or 
have  not  had  their  names  enrolled. 

''  3.  An  offer  is  made  to  the  plaintiff  that  he  may  receive  back 
his  deposit  with  interest  from  the  date  of  the  payment,  and  he  is 
desired  to  consider  himself  as  having  received  notice  thereof. 
But  it  is  not,  I  apprehend,  competent  to  any  number  of  persons 
in  a  partnership  (unless  they  show  a  contract  rendering  it  compe- 
tent to  them)  formed  for  specified  purposes,  if  they  propose  to 
form  a  partnership  for  very  different  purposes,  to  effect  that  for- 
mation by  calling  upon  some  of  their  partners  to  receive  their 
subscribed  capital  and  interest  and  quit  the  concern ;  and,  in  effect, 
merely  by  compelling  them  to  retire  upon  such  terms,  so  to  form 
a  new  company.  This  would  as  to  partnerships, 'be  a  most  dan- 
gerous doctrine.  Where  a  partnership  is  dissolved  (even  where 
it  can  be  in  a  sense  dissolved  the  instant  after  notice  to  dissolve 
is  given,  if  there  be  no  contract  to  the  contrary,)  it  must  still  con- 
tinue for  the  purpose  of  winding  up  its  affairs,  of  taking  and  set- 
tling all  its  accounts,  and  converting  all  the  property,  means  and 
assets  of  the  partnership  existing  at  the  time  of  the  dis- 
r  *405  1  solution,  as  beneficially  as  may  be  for  *the  benefit  of 
all  who  were  partners,  according  to  their  respective 
shares  and  interests;  and  the  other  partners  cannot  say  to  him,  to 
whom  they  have  given  an  offer  of  his  deposit  and  interest.  Take 
that,  and  we  are  a  new  company,  keeping  the  effects,  means, 
assets  and  property  of  the  old,  as  the  property  of  the  new  part- 
nership. 

"4.  The  company  will  indemnify  the  plaintiff  against  loss  by 
its  transactions  already  had,  or  hereafter  to  be  had,  not  for  the 

proper  deed  relating  to  the  specified  objects;  and  in  law  a  person  may,  by  his 
own  fault,  be  subject  to  liabilities,  though  not  entitled  to  emoluments." 

(a)  It  was  stated  in  the  affidavits  that  upwards  of  340  members,  holding 
together  upwards  of  22,400  shares,  had  executed  the  deed  of  settlement. 


APPENDIX. 


405 


specified  purposes  of  the  institution.  But  the  right  of  a  partner 
is  to  hold  to  the  specified  purposes  his  partners  whilst  the  partner- 
ship continues,  and  not  to  rest  upon  indemnities  with  respect  to 
what  he  has  not  contracted  to  engage  in. 

"5.  A  dissatisfied  partner  may  sell  his  shares  for  double  what 
he  originally  gave  for  them.  But  he  cannot  be  compelled  to  part 
with  them  for  that  reason;  it  may  be  his  principal  reason  for 
keeping  them,  having  the  partnership  concern  carried  on  accord- 
ing to  the  contract.  The  original  contract  and  the  loss  which  his 
partners  would  sufier  by  a  dissolution,  is  his  security  that  it  shall 
be  so  carried  on  for  him  and  them  beneficially,  and  with  aug- 
mented improvement  in  the  value  of  his  shares  and  their  shares. 
"Upon  the  whole,  T  do  not  find  that,  upon  taking  the  sup- 
position in  page  1.  to  be  true,  in  law  there  is  any  sufficient  matter 
contained  in  the  above  points  made  in  the  affidavits  on  the  part  of 
the  defendants. 

"The  repeal  of  the  act  6  Geo.  I.  which  merely  made  it  lawful 
for  societies  or  partnerships,  however  numerous  their  members 
might  be,  to  insure  against  marine  risks,  could  not  make  it  lawful 
for  companies  or  societies,  which  were  formed  for  specified  pur- 
poses of  insurances  upon  lives  and  against  fire,  to  insure  against 
marine  risks,  unless  the  contracts  by  which  such  companies  were 
formed,  either  expressly  or  impliedly  (where  individual  partners 
did  not  consent  to  embarking  in  new  projects,  either  originally 
or  subsequently  to  the  formation  of  the  companies),  created  an 
authority  in  some  part  of  the  body  to  bind  all  the  body  to  the 
adoption  of  such  new  undertakings. 

"Upon  the  best  consideration  I  can  give  this  case,  I  think  the 
original  contract  of  this  society  was  to  form  a  life  and  fire  assu- 
rance company;  and  that  in  the  original  institution  the  objects 
are  all  specified,  except  what  fall  under  the  general  words,  '  the 
purchase  of  such  other  descriptions  of  property  as  the  law  may 
sanction'  At  that  time  the  law  did  not  sanction  marine  in- 
surances by  such  a  body.  It  might  never  sanction  them.  The 
words  ^purchase  of  will  probably  be  taken  as  connected  with 
the  words  ^such  other  descriptions  of  property  as  the  law 
may  sanction,'  and  the  general  words  be  taken  to  mean  things 
ejusdem  generis.  If  it  was  thought  that  the  prospectus  had  a 
reference  to  marine  insurances,  there  could  be  no  reason  for  a 
non-avowal  of  the  purpose  so  to  insure,  when  the  matter  was 
before  Parliament.  It  is  intimated  in  an  affidavit  that  the  pros- 
pectus ought  not  to  be  considered  as  forming  the  plan  of  the  in- 
stitution, but  there  seems  to  be  enough  in  the  affidavits  to  prove 
that  it  did;  and  if  Mr.  Rothschild  is  right  in  intimating 
that  it  did  not,  it  seems  difficult  to  maintain  what  *ad-  [  *406  ] 
ventures  the  directors  may  not  engage  this  company  to 
undertake. 

*<For  such  and  other  reasons  the  matter  has  been  also  discussed 


406 


APPENDIX. 


before  me  upon  the  ground,  that  by  reason  of  the  plaintiff's  ac- 
quiescence in  the  extension  of  the  plan,  he  is  not  (whether  others 
are  or  are  not,  upon  a  bill  filed  by  him,  it  is  said  is  not  material) 
at  liberty  to  contravene  the  purpose  of  extending  the  transactions 
of  the  company  to  marine  insurances,  and  this  deserves  much 
consideration. 

"If  six  persons  join  in  a  partnership  of  life  assurance,  it  seems 
clear  that  neither  the  majority,  nor  any  select  part  of  them,  nor 
five  out  of  the  six,  could  engage  that  partnership  in  marine  in- 
surances, unless  the  contract  of  partnership  expressly  or  impliedly 
gave  that  power;  because  if  this  was  otherwise,  an  individual  or 
individuals,  by  engaging  in  one  specified  concern,  might  be  im- 
plicated in  any  other  concern  whatever,  however  different  in  its 
nature,  against  his  consent. 

"But  if  a  part  of  the  six  openly  and  publicly  professed  their 
intention  to  engage  the  partnership  in  another  concern,  and  clearly 
and  distinctly  brought  this  to  the  knowledge  of  one  or  more  of 
the  other  partners,  and  such  one  or  more  of  the  other  partners 
could  be  clearly  shown  to  have  acquiesced  in  such  intention,  and 
to  have  permitted  the  other  partners  to  have  entered  upon  and  to 
have  engaged  themselves  and  the  body  in  such  new  projects,  and 
thereby  to  have  placed  their  partners,  so  engaged,  in  difficulties 
and  embarrassments,  unless  tiiey  were  permitted  to  proceed  in 
the  farther  execution  of  such  projects,  if  a  court  of  equity  would 
not  go  the  length  of  holding  that  such  conduct  was  consent,  it 
would  scarcely  think  parties  so  conducting  themselves  entitled  to 
the  festinuni  remedium  of  injunction, 

"  It  may  be  taken  that  the  principle  that  would  apply  to  the 
partnership  of  six,  will  apply  to  this  partnership  of  600  or  700; 
340  have  executed  in  respect  of  not  quite  half  the  number  of 
shares;  there  probably  may  be  therefore  600  or  700  members. 
To  those  who  have  not  had  occasion  to  observe  the  boldness  of 
speculation,  it  may  seem  astonishing  that  persons,  and  so  many 
in  number,  should  have  engaged  themselves  in  a  speculation  so 
little  explained,  and  undertaken  to  execute  deeds,  of  the  contents 
of  which  they  had  so  little  information.  To  those  who  know  the 
difficulty  of  applying  the  rules  of  law  and  equity  to  societies 
constituted  of  such  numbers  of  persons  not  incorporated,  it  is  not 
matter  of  surprise  that  persons,  ignorant  of  those  difficulties, 
should  become  members  of  such  societies;  it  may  be  matter  of 
surprise  to  them,  that  persons  who  know  the  difficulty  of  apply- 
ing those  rules  should  becom-e  members,  even  where  the  nature 
of  the  speculation  is  clearly  explained,  and  full  information  is 
given  of  the  contents  of  the  deeds  to  be  executed.  Much  has 
been  done  with  respect  to  the  difficulty  alluded  to,  by  pro- 
visions how  those  who  have  demands  upon  such  societies  are  to 
sue,  and  how  such  societies  are  to  be  sued ;  much  remains  to  be 
done,  and  particularly  as  to  rendering  simple  and  eflfectual  the 


APPENDIX.  406 

remedies  of  the  members  of  such  societies  against  each  other.  It 
is  observed  that  the  members  of  this  society  under- 
writing will  be  each  liable  to  the  bankrupt  *laws.  [  *407  1 
That  depends  upon  the  act  of  parliament  which  is  to 
take  effect  in  May  .next. (a)  Shares  may  devolve  to  feme 
coverts,  infants,  &c.;  but  whatever  are  the  difficulties,  courts 
must  struggle  to  remedy  them,  and  to  prevent  particular  mem- 
bers of  those  bodies  from  engaging  other  members  in  projects  in 
which  they  have  not  consented  to  be  engaged,  or  the  engaging  in 
which  they  have  not  encouraged,  assented  to,  empowered,  or  ac- 
quiesced in  expressly  or  tacitly,  so  as  to  make  it  not  equitable 
that  they  should  seek  to  restrain  them.  The  principles  which 
a  court  would  act  upon  in  the  case  of  a  partnership  of  six  must, 
as  far  as  the  nature  of  things  will  admit,  be  applied  to  a  partner- 
ship of  600. 

"  I  have  read  the  affidavits  originally  and  since  sent  to  me, 
repeatedly  and  with  great  attention.  Since  I  received  the  latter, 
it  has  been  impossible  for  me,  in  point  of  time,  to  put  together 
(even  as  cursorily  as  I  have  written  without  time  to  correct 
them)  the  preceding  observations.  (6)  The  present  impression 
upon  my  mind  is,  that  in  a  matter  important  as  this  certainly  is, 
it  may  be  difficult  to  arrive  at  a  conclusion  perfectly  satisfactory, 
when  it  is  to  be  formed  without  the  opportunity  of  calling  for 
explanations,  which  a  hearing  in  town  would  afford.  As  I  read 
the  affidavits,  and  on  repeatedly  reading  them,  such  explanations, 
it  appears  to  me,  may  be  necessary.  They  who  seek  to  embark 
a  partner  in  a  business  not  originally  part  of  the  partnership  con- 
cern, must  make  out  clearly  that  he  did  expressly  or  tacitly 
acquiesce.  To  determine  whether  this  is  made  out  requires  a 
very  accurate  and  critical  attention  to  every  word  in  the  affida- 
vits, and  to  the  want  of  words  in  them.  To  exemplify  this,  the 
plaintiff  in  his  affidavit  states,  that  after  the  bill  had  been  read 
a  second  time  in  the  House  of  Commons,  he  had  an  interview 
with  Mr.  Rothschild;  that  he  stated  to  him  in  strong  terms  his 
opinion  of  the  danger"  of  the  undertaking,  his  reasons  for  that 
opinion,  his  entire  disapprobation  of  the  company  engaging  in 
marine  insurances,  and  he  swears  that  he  expressed  his  determi- 
nation to  oppose  the  same  by  every  legal  means.  Mr.  Roths- 
child in  his  affidavit  admits,  that  in  the  conversation  the  plaintiff 
objected;  he  denies  that  he  stated  his  opinion  of  the  danger,  but 
he  omits  entirely  to  notitie,  vvhether  the  plaintiff  did  or  did  not 
(as  he  swears  he  did)  express  his  determination  to  oppose  the 

(a)  5  Geo.  4.  c.  98.  s.  2.  by  which  an  underwriter  is  declared  to  be  a  trader 
liable  to  the  bankrupt  laws,  and  see  6  Geo.  4.  c.  16.  s.  2.  Formerly  it  was 
held  that  an  underwriter,  merely  in  that  character,  could  not  be  a  bankrupt. 
Ex  parte  Bell,  15  Ves.  355. 

(b)  This  sentence  was  literally  transcribed  frotn  the  copy  of  the  observa- 
tions with  which  I  was  furnished. 


407  APPENDIX. 

same  by  all  legal  means,  an  expression,  both  as  to  its  nature 
and  the  time  when  it  was  made,  extremely  important. 

"  So  again  the  plaintiff  states  in  his  affidavit,  that  he  believes 
the  presidents  and  directors  took  upon  themselves  such  offices, 
and  were  privy  to  and  assented  to  the  publishing  the  prospectus, 
and  authorised  the  writing  of  the  said  letter  of  the  said  Nathan 
Meyer  Rothschild,  and  have  ever  since  acted  as  presidents  and 

directors.  To  this  I  find  no  contradiction,  (c) 
r  *408  ]  "  On  the  other  hand,  though  it  is  no  objection  to  the 
plaintiff  that  he  is  an  underwriter  at  Lloyd's,  yet  it 
may  deserve  consideration,  whether  he  is  really  sueing  for  him- 
self, or  for  the  members  of  Lloyd 's,  not  members  of  this  com- 
pany. Respectable  the  members  of  Lloyd's  are,  but  it  is  alleged 
that  the  plaintiff's  suit  is  their  suit,  that  he  is  suing  at  their  cost 
and  charges;  this  is  not  negatived,  and  it  may  be  material. 

"  It  will  require  some  time  to  analyse  with  sufficient  particula- 
rity the  affidavits.  That  time  I  have  not  had,  and  after  it  has 
been  had,  probably  more  information  must  be  called  for.  I  wish, 
therefore,  to  know  by  post  whether  the  parties  can  make  any 
arrangement,  by  indemnities  to  the  plaintiff  in  the  mean  time  or 
otherwise,  which  would  give  the  court  the  opportunity  of  publicly 
hearing  this  matter  when  it  meets,  having  then  the  advantage  of 
counsel  and  such  further  information  as  both  parties  can  give.  If 
they  cannot  agree  upon  some  such  arrangement,  I  shall  proceed 
to  state  the  effect  of  the  affidavits  as  they  strike  me,  and  either 
deny  the  injunction  or  grant  it,  or  order  some  interim  arrange- 
ment as  soon  as  I  hear  from  them,  and  have  time  sufficient  for  the 

purpose. 

"Eldon,  C." 

Additional  affidavits  were  subsequently  filed,  both  on  the  be- 
half of  the  plaintiff  and  the  defendants,  with  the  view  of  supply- 
ing the  omissions  suggested  by  his  lordship,  and  the  injunction 
was  granted.  A  new  company  was  afterwards  formed  for  the 
purpose  of  engaging  in  marine  insurances. 

(c)  The  Lord  Chancellor  observed  in  the  margin,  "  A  statement  to  Mr. 
Rothschild,  it  may  be  contended,  is  in  effect  a  statement  to  the  presidents  and 
directors." 


(  409  ) 
APPENDIX.— No.  I. 

AN  ACT 

RELATIVE  TO  LIMITED  PARTNERSHIPS.(1) 

(Pamp.  Laws,  Penns.  1835-6,  p.  143.) 
Section  1.  Be  it   enacted  by  the   Senate  and 
House  of  Representatives  of  the  Commonwealth  of 
Pennsylvania  in  General  Assemhly  met,  and  it  is 
hereby  enacted  by  the  authority  of  the  same,  That 
limited  partnerships  for  the  transaction  of  any  agri- 
cultural, mercantile,  mechanical,  mining,  and  trans- 
porting of   coal,   or  manufacturing  business,  within 
this  state,  may  be  formed  by  two  or  more  persons, 
upon  the  terms,  with  the  rights  and  powers,  and  sub- 
ject to  the  conditions  and  liabilities  herein  prescribed; 
but  the  provisions  of  this  act  shall  not  be  construed  to  Banking  and 
authorise  any  such  partnership   for  the  purpose  of  jj^^ur JJ-^^^e 
banking  or  making  insurance. 

Sec.  2.  Such  partnerships  may  consist  of  one  or  General  and 
more  persons,  who  shall  be  called  general  partners,  ^P^^^^^l  P=^^^- 
and  who  shall  be  jointly  and  severally  responsible  as 
general  partners  now  are  by  law,  and  of  one  or  more 
persons  who  shall  contribute  in  actual  cash  payments, 
a  specific  sum  as  capital  to  the  common  stock,  who 
shall  be  called  special  partners,  and  who  shall  not  be 
liable  for  the  debts  of  the  partnership  beyond  the  fund 
so  contributed  by  him  or  them  to  the  capital. 

Sec.  3.  The  general  partners  only  shall  be  autho-  General  part- 
rised  to  transact  business  and  sign  for  the  partnership,  ^^[^  °"  ^  ^° 
and  to  bind  the  same. 

Sec.  4.  The  persons  desirous  of  forming  such  part- 
nership shall  make  and  severally  sign  a  certificate, 
which  shall  contain: — 

I.  The  name  or  firm  under  which  such  partnership  A  certificate 
.  ,  ,1.1  to  contain — 
IS  to  be  conducted. 

II.  The  general  nature  of  the  business  intended  to 
be  transacted. 

III.  The  names  of  all  the  general  and  special  part- 
ners interested  therein,  distinguishing  which  are  gene- 

(1)  A  bill  authorising  limited  partnerships,  has  passed  the 
Assembly  of  Rhode  Island,  by  an  overwhelming  majority, 
Jan.  1837. 


410 


APPENDIX. 


Certificate  to 
be  acknovv- 


Certificate  to 
be  recorded, 
and  where. 


Affidavit  of 
general  part- 
ners. 


Liability  in 
case  of  false 
statement. 


Terms  of 
partnership 
to   be   pub- 
lished. 


ral  and  which  are  special  partners,  and  their  respec- 
tive places  of  residence. 

IV.  The  amount  of  capital  which  each  special  part- 
ner shall  have  contributed  to  the  common  stock. 

V.  The  period  at  which  the  partnership  is  to  com- 
mence, and  the  period  at  which  it  will  terminate. 

Sec.  5.  The  certificate  shall  be  acknowledged  by 
the  several  persons  signing  the  same,  in  the  manner, 
and  before  the  same  persons,  that  deeds  are  now  ac- 
knowledged, and  the  said  acknowledgment  shall  be 
certified  in  the  same  manner  as  the  acknowledgment 
of  deeds  are  now  certified. 

Sec  6.  The  certificate  so  acknowledged  and  certi- 
fied, shall  be  recorded  and  filed  in  the  office  of  the  re- 
corder of  deeds  of  the  proper  county,  in  which  the 
principal  place  of  business  of  the  partnership  shall  be 
situated,  and  shall  also  be  recorded  by  him  at  large,  in 
a  book  to  be  kept  for  that  purpose  open  to  public  in- 
spection: If  the  partnership  shall  have  places  of  busi- 
ness situated  in  difierent  counties,  a  transcript  of  the 
certificate  and  of  the  acknowledgment  thereof,  duly 
certified  by  the  recorder  in  whose  office  it  shall  be 
filed,  and  under  his  official  seal,  shall  be  filed  and  re- 
corded in  like  manner  in  the  office  of  the  recorder  of 
every  such  county. 

Sec.  7.  At  the  time  of  filing  the  original  certi- 
ficate, with  the  evidence  of  the  acknowledgment  there- 
of, as  before  directed,  an  affidavit  of  one  or  more  of 
the  general  partners  shall  also  be  filed  in  the  same  of- 
fice, stating  the  sums  specified  in  the  certificate  to  have 
been  contributed  by  each  of  the  special  partners  to  the 
common  stock,  and  to  have  been  actually,  and  in  good 
faith,  paid  in  cash. 

Sec.  8.  No  such  partnership  shall  be  deemed  to 
have  been  formed  until  a  certificate  shall  have  been 
made,  acknowledged,  and  filed  and  recorded,  nor  until 
an  affidavit  shall  have  been  filed  as  above  directed;  and 
if  any  false  statement  be  made  in  such  certificate  or 
affidavit,  all  the  persons  interested  in  such  partnership 
shall  be  liable  for  all  the  engagements  thereof,  as  gene- 
ral partners. 

Sec.  9.  The  partners  shall  publish  the  terms  of 
the  partnership,  when  registered,  for  at  least  six  weeks 
immediately  after  such  registry,  in  two  newspapers, 
to  be  designated  by  the  recorder  of  deeds  of  the 
county  in  which  such  registry  shall  be  made,  and  to 
be  published  in  the  county  or  counties  in  which  their 


APPENDIX. 


411 


business  shall  be  carried  on;  and  if  such  publication 
be  not  made,  the  partnership  shall  be  deemed  general. 

Sec.  10.  Affidavits  of  the  publication  of  such  notice  Affidavits. 
by  the  printers  of  the  newspapers  in  which  the  same 
shall  be  published,  may  be  filed  with  the  recorder, 
directing  the  same,  and  shall  be  evidence  of  the  facts 
therein  contained. 

Sec.  11.  Every  renewal  or  continuance  of  such  Renewal  of 
partnership  beyond  the  time  originally  fixed  for  its  partnerships, 
duration,  shall  be  certified,  acknowledged,  and  re- 
corded, and  an  affidavit  of  a  general  partner  be  made 
and  filed,  and  notice  be  given  in  the  manner  herein 
required  for  its  original  formation,  and  every  such 
partnership  which  shall  be  otherwise  renewed  or 
continued,  shall  be  deemed  a  general  partnership. 

Sec.  12.  Every  alteration  which  shall  be  made  in  Alterations  of 
the  names  of  the  partners,  in  the  nature  of  the  busi-  partnerships, 
ness,  or  in  the  capital  or  shares  thereof,  or  in  any 
other  matter  specified  in  the  original  certificate,  shall 
be  deemed  a  dissolution  of  the  partnership,  and  every 
such  partnership  which  shall  in  any  manner  be  carried 
on  after  any  such  alteration  shall  have  been  made, 
shall  be  deemed  a  general  partnership,  unless  renewed 
as  a  special  partnership,  according  to  the  provisions 
of  the  last  section. 

Sec.  13.  The  business  of  the  partnership  shall  be 
conducted  under  a  firm,  in  which  the  names  of  the 
general  partnership  only  shall  be  inserted,  without  the 
addition  of  the  word  "  Company,"  or  any  other  gene-  Company, 
ral  term,  and  if  the  name  of  any  special  partner  shall 
be  used  in  such  firm,  with  his  privity,  he  shall  be 
deemed  a  general  partner. 

Sec.  14.  Suits  in  relation  to  the  business  of  the  Suits. 
partnership  may  be  brought  and  conducted  by  and 
against  the  general  partners,  in  the  same  manner  as  if 
there  were  no  special  partners. 

Sec.  15.  No  part  of  the  sum  which  any  special  Liability  for 
partner  shall  have  contributed  to  the  capital  stock,         ' 
shall  be  liable  for  any  debts  previously  contracted  by 
the  general  partners,  nor  shall  any  part  of  such  sum 
be  withdrawn  by  him,  or  paid  or  transferred  to  him 
in  the  shape  of  dividends,  profits,  or  otherwise,  at  any 
time  during  the  continuance  of  the  partnership;  but  ^"*!^^^''' *"'^ 
any  partner  may  annually  receive  lawful  interest  on  ^"^^ 
the  sum  so  contributed  by  him,  if  the  payment  of  such 
interest  shall  not  reduce  the  original  amount  of  such 
capital,  and  if  after  the  payment  of  such  interest,  any 
-   66 


412  APPENDIX. 

profits  shall  remain  to  be  divided,  he  may  also  receive 

his  portion  of  such  profits. 
Original  capi.      Sec.  16.  If  it  shall  appear  that  by  the  payment  of 
tal  not  to  be    interest  or  profits  to  any  special  partner,  the  original 
impairc  ,        capital  has  been  reduced,  the  partner  receiving  the 

same  shall  be  bound  to  restore  the  amount  necessary 

to  make  good  his  share  of  capital,  with  interest. 
A  special  Sec.  17.  A  special  partner  may,  from  time  to  time, 

partner  may  examine  into  the  state  and  progress  of  the  partnership 
examine  into  concerns,  and  may  advise  as  to  their  management,  but 
the  concerns,  ,        ,     ,,  '        ,  ■^    ^  ^       ■  i.      r  xt, 

&,c.  he  shall  not  transact  any  busmess  on  account  ot  tne 

partnership,    nor  be  employed   for  that  purpose  as 
agent,  attorney,  or  otherwise;  if  he  shall  interfere  con- 
trary to  these  provisions,  he  shall  be  deemed  a  gene- 
ral partner. 
Liability  of         Sec.  18.   The  general  partners  shall   be  liable  to. 
general  part-  account  to  each  Other  and  to  the  special  partners,  for 
"^""  the  management  of  their  concern,  both  in  law  and 

equity,  as  other  partners  now  are  by  law. 
Fraud.  ^^c.  19.  Every  partner  who  shall  be  guilty  of  any 

fraud  in  the  affairs  of  the  partnership,  shall  be  liable 
civilly  to   the   party  injured,   to   the  extent  of  his 
damage. 
Sale,   assign.      Sec  20.  Every  Sale,  assignment,  or  transfer  of  any 
mentor  trans- of  the  property  or  effects  of  such  partnership,  made 
fer,  vvhen  in-  -^^  g^^j^  partnership  when  insolvent,  or  in  contempla- 
'    tion  of  insolvency,  or  after  or  in  contemplation  of  the 
insolvency  of  any  partner,  with  the  intent  of  giving  a 
preference  to  any  creditor  of  such  partnership  or  in- 
solvent partner  over  other  creditors  of  such  partner- 
Judgment       ship,  and  every  judgment  confessed,  lien  created,  or 
and  lien  also  security  given  by  any  such  partner  under  the  like  cir- 
'^°^^'  cumstances  and  with  the  like  intent,  shall  be  void  as 

against  the  creditors  of  the  partnership. 
Sale,    assign-      Sec.  21.  Every  such  sale,  assignment,  or  transfer 
ment,  &c.,  as  of  any  of  the  property  or  effects  of  the  general  or 
to  creditors,    gpgcial  partner  made  by  such  general  or  special  part- 
ner  when  insolvent,   or  in  contemplation  of  insol- 
vency, or  after  or  in   contemplation  of  the   insol- 
vency of  the  partnership,  with  the  intent  of  giving 
to  any  creditor  of  his  own  or  of  the  partnership  a  pre- 
ference over  creditors  of  the  partnership,  _and  every 
judgment  confessed,  lien  created,  or  security  given  by 
any  such  partner  under  the  like  circumstances  and 
with  the  like  intent,  shall  be  void  as  against  the  credit- 
ors of  the  partnership. 
Liability.  Sec.  22.  Every  special  partner  who  shall  violate 

any  provision  of  the  two  last  preceding  sections,  or 


APPENDIX.  413 

who  shall  concur  in  or  assent  to  any  such  violation  by 
the  partnership,  or  by  any  individual  partner,  shall  be 
liable  as  a  general  partner. 

Sec.  23.  In  case  of  the  insolvency  or  bankruptcy  Rights  of 
of  the  partnership,  no  special  partner  shall,  under  any  creditors, 
circumstances,  be  allowed  to  claim  as  a  creditor,  until 
the  claims  of  all  the  other  creditors  of  the  partnership 
shall  be  satisfied. 

Sec.  24.    No   dissolution  of  such  partnership  by  Dissolution, 
the  acts  of  the  parties,  shall  take  place  previous  to  the 
time  specified  in  the  certificate  of  its  formation,  or  in 
the  certificate  of  its  renewal,  until  a  notice  of  such 
dissolution  shall  have  been  filed  and  recorded  in  the 
recorder's  office  in  which  the  original  certificate  was 
recorded,  and  published  once  in  each  week  for  four 
weeks,  in  a  newspaper  printed  in  each  of  the  counties 
where  the  partnership  may  have  places  of  business. 
NER  MIDDLESWARTH, 
Speaker  of  the  House  of  Representatives. 
THOMAS  S.  CUNNINGHAM, 
Speaker  of  the  Senate. 

Approved — The  twenty-first  day  of  March,  A.  D. 
eighteen  hundred  and  thirty-six. 

JOS:  RITNER. 


(  414) 


APPENDIX.— No.  II. 

OF  LIMITED  PARTNERSfflPS. 

(1  Revised  Laws,  New  York,  page  763.) 
Sec.  L  For  what  purposes  limited  partnerships  may  be  formed.     - 

2.  To  consist  of  general  and  special  partners ;  their  respective 

liabilities. 

3.  General  partners  only,  to  transact  business. 

4.  Certificate  to  be  signed  by  all  the  partners ;  its  contents. 

5.  Certificates  before  whom,  and  how  to  be  acknowledged. 

6.  In  what  counties  to  be  filed  and  recorded. 

7.  Affidavit  also  to  be  filed  ;  its  contents. 

8.  Partnership  when  deemed  formed ;  eflFect  of  false  certificate, 

&c. 

9.  Terms  of  partnership  how  to  be  published  ;  effect  of  omission. 

10.  Affidavits  of  publication,  where  to  be  filed ;  effect  as  evidence. 

11.  Renewals,  &,c.  of  partnership,  how  to  be  made. 

12.  Alterations,  deemed  dissolution  of  partnership. 

13.  In  what  firm  and  names,  business  to  be  carried  on. 

14.  Suits  to  be  in  names  of  general  partners. 

15.  Special  partner  not  to  withdraw  his  capital ;   may  receive 

interest,  <^-c. 

16.  When  to  refund  interest  received  by  him. 

17.  Rights  of  special  partners ;  restrictions  upon  them. 

18.  Liability  of  general  partners  to  account. 

19.  Liability  and  punishment  of  partners  guilty  of  fraud. 

20.  Assignments,  &c.in  certain  cases,  to  give  preference  to  cre- 

ditors, void. 

21.  Certain  assignments,  &c.  of  property  of  general  partners, 

void. 

22.  Certain  acts  of  special  partner  to  render  him  liable. 

23.  Special  partners  not  to  claim  as  creditors  on  insolvency  of 

firm. 

24.  Dissoluton  by  acts  of  partners,  how  made  and  published. 

Purposes  of        SECTION.  1.  Limited  partnerships  for  the  transac- 
limited  part-   ^Jqj^  of  ^ny  mercantile,  mechanical,  or  manufacturing 
nerships.        business,  within  this  state,  may  be  formed  by  two  or 
more  persons,  upon  the  terms,  with  the  rights  and 
powers,  and  subject  to  the  conditions  and  liabilities 
herein  prescribed;  but  the  provisions  of  this  Title 
shall  not  be  construed  to  authorise  any  such  partner- 
ship for  the  purpose  of  banking,  or  making  insur- 
ance. (1) 
Liabilities  of       Sec.  2.  Such  partnerships  may  consist  of  one  or 
general  and    jjiore  pcrsons,  who  shall  be  called  general  partners, 
special  part-   ^^^  ^^^^^  ^^^^^  ^^  jointly  and  severally  responsible  as 


(1)  The  different  sections  of  this  Title,  except  the  tenth,  and 
where  otherwise  noted,  are  taken,  with  variations,  from  the  act 
of  1822,  p.  259. 


APPENDIX. 


415 


general  partners  now  are  by  law;  and  of  one  or  more 
persons  who  shall  contribute,  in  actual  cash  payments, 
a  specific  sum  as  capital,  to  the  common  stock,  who 
shall  be  called  special  partners,  and  who  shall  not  be 
liable  for  the  debts  of  the  partnership,  beyond  the 
fund,  so  contributed  by  him  or  them  to  the  capital. 

Sec.  3.   The  general  partners,   only,  shall   be  au-  Business,  hj 
thorised  to  transact  business  and  sign  for  the  partner-  JJ^nJlcted, 
ship,  and  to  bind  the  same. 

Sec.  4.  The  persons  desirous  of  forming  such  part-  Certificate  to 
nership,  shall  make  and  severally  sign  a  certificate,  ^fj  ^Jj^^^^JJ 
which  shall  contain.  ners:  its 

1.  The  name  or  firm  under  which  such  partnership  contents, 
is  to  be  conducted  : 

2.  The  general  nature  of  the  business  intended  to 
be  transacted : 

3.  The  names  of  all  the  general  and  special  partners 
interested  therein,  distinguishing  which  are  general, 
and  which  are  special,  partners,  and  their  respective 
places  of  residence : 

4.  The  amount  of  capital  which  each  special  part- 
ner shall  have  contributed  to  the  common  stock: 

5.  The  period,  at  which  the  partnership  is  to  com- 
mence, and  the  period,  at  which  it  will  terminate. 

Sec.  5.  The  certificate  vshall  be  acknowledged  by  To  be  ac- 
the  several  persons  signing  the  same,  before  the  chan-  knowledged. 
cellor,  a  justice  of  the  supreme  court,  a  circuit  judge, 
or  a  judge  of  the  county  courts;  and  such  acknow- 
ledgment shall  he  made  and  certified  in  the  same  man- 
ner, as  the  acknowledgement  of  conveyances  of  land. 

Sec  6.  The  certificate  so  acknowledged  and  certi-  When  to  be 
fied,  shall  be  filed  in  the  office  of  the  clerk  of  the  f^f^J""^  '^ 
county  in  which  the  principal  place  of  business  of  the 
partnership  shall  be  situated,  and  shall  also  be  record- 
ed by  him  at  large,  in  a  book  to  be  kept  for  that  pur- 
pose, open  to  public  inspection.  If  the  partnership 
shall  have  places  of  business  situated  in  different  coun- 
ties, a  transcript  of  the  certificate,  and  of  the  acknow- 
ledgment thereof,  duly  certified  by  the  clerk  in  whose 
office  it  shall  be  filed,  under  his  official  seal,  shall  be 
filed  and  recorded  in  like  manner,  in  the  office  of  the 
clerk  of  every  such  county.  » 

Sec.  7.  At  the  time  of  filing  the  original  certificate.  Affidavit  to  be 
with  the  evidence  of  the  acknowledgment  thereof,  as  "  ^  ' 
before  directed,  an  affidavit  of  one  or  more  of  the 
general  partners  shall  also  be  filed  in  the  same  office, 
stating  that  the  sums,  specified  in  the  certificate,  to 
have  been  contributed  by  each  of  the  special  partners 


416  APPENDIX. 

to  the  common  stock,  have  been  actually  and  in  good 
faith  paid  in  cash. 
When  part-         Sec.  8.   No  such  partnership  shall  be  deemed  to 
"^"h'pdeem- j^g^.g  been  formed,  until  a  certificate  shall  have  been 
oime  .      jjjg^(je^  jjcknowledged,  filed,  and  recorded,  nor  until  an 
affidavit  shall  have  been  filed,  as  above  directed ;  and 
Consequence  if  any  false  statement  be  made  in  such  certificate  or 
of  false  certi.  affidavit,  all  the  persons  interested  in  such  partnership, 
ficate.  &.C.      gj^^j^  ^^  Yi2ih\e  for  all  the  engagements  thereof,  as  gen- 
eral partners. 
Terms  of  Sec.  9.  The'partners  shall  publish  the  terms  of  the 

partnership  to  partnership  when  registered,  for  at  least  six  weeks  im- 
e  pu   IS  e  .  jjjg^jjg^^g]y  j^fi-gj.  gyg]^  registry,  in  two  newspapers,  to 
be  designated  by  the  clerk  of  the  county  in  which 
such  registry  shall  be  made,  and  to  be  published  in  the 
'  senate  district  in  which  their  business  shall  be  carried 

Effect  of        on ;  and  if  such  publication  be  not  made,  the  partner- 
omission,        gj^jp  gj^^jj  ^g  deemed  general. 

Proof  of  pub-      Sec.  10.  Affidavits  of  the  publication  of  such  no- 
lication.  tice,  by  the  printers  of  the  newspapers,  in  which  the 

same  shall  be  published,  may  be  filed  with  the  clerk' 
directing  the  same,  and  shall  be  evidence  of  the  facts 
therein  contained. 
Renewals,  Sec.  H.  Every  renewal  or  continuance  of  such 

&c.  of  part-  partnership,  beyond  the  time  originally  fixed  for  its 
nership.  duration,  shall  be  certified,  acknowledged  and  record- 

ed, and  an  affidavit  of  a  general  partner  be  made  and 
filed,  and  notice  be  given,  in  the  manner  herein  re- 
quired for  its  original  formation;  and  every  such  part- 
nership which  shall  be  otherwise  renewed  or  con- 
tinued, shall  be  deemed  a  general  partnership. 
Dissolved  by      Sec.  12.   Every  alteration  which  shall  be  made  in 
alterations,     the  names  of  the  partners,  in  the  nature  of  the  busi- 
ness, or  in  the  capital  or  shares  thereof,  or  in  any 
other  matter  specified  in  the  original  certificate,  shall 
be  deemed  a  dissolution  of  the  partnership;  and  every 
such  partnership,  which  shall  in  any  manner  be  carried 
When  deem- on  after  any  such  alteration  shall  have  been  made, 
parfner^hi'p     shall  be  deemed  a  general  partnership,  unless  renew- 
ed as  a  special  partnership,  according  to  the  provisions 
of  the  last  section. 
Names   com-      Sec.  13.  The  business  of  the  partnership  shall  be 
posing  firm,    conducted  under  a  firm,  in  which  the  names  of  the 
general  partners,  only,  shall  be  inserted,  without  the 
addition  of  the  word  "  company,"  or  any  other  gene- 
ral term ;  and  if  the  name  of  any  special  partner  shall 
be  used  in  such  firm,  with  his  privity,  he  shall  be 
deemed  a  general  partner. 


APPENDIX.  417 

Sec.  14.  Suits  in  relation  to  the  business  of  the  Suits,  in 
partnership,  may  be  brought  and  conducted,  by  and  "'^"^"^  "'*™^^- 
against  the  general  partners,  in  the  same  manner  as  if 
there  were  no  special  partners. 

Sec.  15.  No  part  of  the  sum,  which  any  special  Capital  of 
partner  shall  have  contributed  to  the  capital  stock,  special    part- 
shall  be  withdrawn  by  him,  or  paid  or  transferred  to  witlidrawn. 
him,  in  the  shape  of  dividends,  profits  or  otherwise, 
at  any  time  during  the  continuance  of  the  partnership; 
but  any  partner  may  annually  receive  lawful  interest  when  he 
on  the  sum  so  contributed  by  him,  if  the  payment  of  may  receive 
such  interest  shall  not  reduce  the  original  amount  of  ^"^^'"^^** 
such  capital;  and  if,   after  the  payment  of  such  inter- 
est, any  profits  shall  remain  to  be  divided,  he  may 
also  receive  his  portion  of  such  profits.(l) 

Sec  16.   If  it  shall  appear,  that  the  payment  of  in-  When  to  re- 
terest  or  profits  to  any  special  partner,   the  original  ^""'^  interest, 
capital  has  been  reduced,  the  partner  receiving  the 
same,  shall  be  bound  to  restore  the  amount  necessary 
to  make  good,  his  share  of  capital,  with  interest. (1.) 

Sec.  17.  A  special  partner  may,  from  time  to  time,  Ri(,htsofspe- 
examine  into  the  state  and  progress  of  the  partnership  cial  partners, 
concerns,  and  may  advise  as  to  their  management; 
but  he  shall  not  transact  any  business  on  account  of  Restrictions, 
the  partnership,  nor  be  employed  for  that  purpose  as 
agent,  attorney,  or  otherwise.     If  he  shall  interfere, 
contrary  to  these  provisions,  he  shall  be  deemed  a 
general  partner. 

Sec  is.  The  general  partners  shall  be  liable  to  General  part- 
account  to  each  other,  and  to  the  special  partners,  for  ners  to  ac- 
their  management  of  the  concern,   both  in  law  and  ^o""*- 
equity,  as  other  partners  now  are,  by  law. 

Sec  19.  Every  partner  who  shall  be  guilty  of  any  Punishment 
fraud  in  the  parnership,   shall  be  liable  civilly  to  the  of  partners 
party  injured,  to  the  extent  of  his  damage;  and  shall       fj'aud. 
also  be  liable  to  an  indictment  for  a  misdemeanor, 
punishable  by  fine  or  imprisonment,  or  both,  in  the 
discretion  of  the  court  by  which  he  shall  be  tried. 

Sec  20.  Every  sale,  assignment,  or  transfer  of  any  Certain  trans- 
of  the  property  or  efl'ects  of  such  partnership,  made  by  ^^""^  ^°^''- 
such  partnership  when  insolvent,  or  in  contemplation 
of  insolvency,  or  after,  or  in  contemplation  of,  the 
insolvency  of  any  partner,  with  the  intent  of  giving 
a  preference  to  any  creditor  of  such  partnership  or  in- 
solvent partner,  over  other  creditors  of  such  partner- 


(1)  Laws  of  1827,  p.  249 ;  of  1822,  p.  259,  5 11. 


418  APPENDIX. 

Certain  judg-  ship;  and  every  judgment  confessed,  lien  created,  or 
ments  and  se- security  given,  by  such  partnership,  under  the  like 
cunues  void,  circumstances,  and  with  the  like  intent,  shall  be  void, 

as  against  the  creditors  of  such  partnership. 
Certain  trans-      Sec.  21.  Every  such  sale,  assignment,  or  transfer  of 
fers,  «fec.  of     any  of  the  property  or  efiects  of  a  general  or  special 
\yy^geneTa\  ^  Partner,   made  by  such  general   or  special  partner, 
partners,  void,  when  insolvent,   or  in  contemplation  of  insolvency, 
or  after  or  in  contemplation  of  the  insolvency  of  the 
partnership,  with  the  intent  of  giving  to  any  creditor 
of  his  own,  or  of  the  partnership,  a  preference  over 
creditors  of  the  partnership;  and  every  judgment  con- 
fessed, lien  created,  or  security  given,  by  any  such 
partner,  under  the  like  circumstances,  and  with  the 
like  intent,  shall  be  void,  as  against  the  creditors  of 
the  partnership. 
When  special      Sec.  22.  Every  special  partner,  who  shall  violate 
partner  to  be-  ^^y  provision  of  the  two  last  preceding  sections,  or 
who  shall  concur  in,  or  assent  to,  any  such  violation 
by  the  partnership  or  by  any  indidvidual  partner, 
shall  be  liable  as  a  general  partner. 
When  not  to      S^c.  23.  In  case  of  the  insolvency  or  bankruptcy 
dito™  ^^  °'^^'  ^^  ^^^  partnership,  no  special  partner  shall,  under  any 
circumstances,  be  allowed  to  claim  as  a  creditor,  until 
the  claims  of  all  the  other  creditors  of  the  partnership 
shall  be  satisfied. 
Dissolution         Sec.  24.   No  dissolution  of  such  partnership  by 
^Irtners°^       the  acts  of  the  parties,  shall  take  place  previous  to 
^    °     "        the  time  specified  in  the  certificate  of  its  formation, 
or  in  the  certificate  of  its  renewal,  until  a  notice  of 
such  dissolution  shall  have  been  filed  and  recorded  in 
the  clerk's  ofiice  in  which  the  original  certificate  was 
recorded,  and  published  once  in  each  week  for  four 
weeks,  in  a  newspaper  printed  in  each  of  the  counties 
where  the  partnership  may  have  places  of  business, 
and  in  the  state  paper. 


(  419  ) 


APPENDIX.— No.  III. 

AN  ACT 

TO  AUTHORISE  LIMITED  PARTNERSHIPS  WITHIN 
THE  STATE  OF  MARYLAND. 

Extract  from  the  Laws  of  Maryland,  printed  by  J.  Hughes  at  Anna- 
polis, Vol.  ix.  ch.  213.    Passed  Feb.  24th,  1826. 

Sec.  1 .  Be  it  enacted  by  the  General  Assembly  of  Limited  part- 
Maryland,  That  it  shall  and  may  hereafter  be  lawful  "j^^^'jj^jij^''' 
to  form  limited  copartnerships  for  the  transaction  of 
business  within  this  state,  according  to  the  provisions 
of  this  act:  Provided,  that  nothing  herein  contained  Proviso. 
shall  be  so  construed,  as  to  authorise  such  partnerships 
for  any  banking  purpose  whatsoever — or  for  any  busi- 
ness or  concern  connected  with  insurance. 

Sec.  2.  And  be  it  enacted,    That  partnerships  to  General  and 
be  formed  under  this  act,  shall  consist  of  one  or  more  special  part- 
partners  severally  and  jointly  responsible,  as  the  case  "^"* 
may  be,  according  to  the  existing  laws  and  rules  of 
law  on  that  subject,  who  shall  be  called  general  part- 
ners, and  one  or  more  partners  who  furnish  certain 
funds  for  capital  in  the  common  stock,  whose  liability 
shall  not  extend  farther  than  the  fund  which  he  or 
they  have  furnished  to  the  partnership  stock,  and 
shall  be  called  special  partners. 

Sec.   3.  And  be  it  enacted.  That   such  partner-  Names  of  the 
ships  shall  be  conducted  under  a  name  or  firm  con-  firm, 
sisting  of  all  the  names  of  all  the  partners  interested, 
except  special  partners. 

Sec.  4.  And  be  it  enacted,  That  no  special  part-  Special  part- 
ner shall  transact  any  business  on  account  of  the  part-  "^''^  restnct- 
nership,  nor  be  employed  for  that  purpose  as  agent, 
attorney,  or  otherwise,  under  the  penalty  of  being 
liable  as  general  partners:  Provided,  that  this  section 
shall  not  be  construed  to  prevent  the  special  partners 
from  examining  into  the  state  and  progress  of  the 
partnership  concern,  and  advising  as  to  its  manage- 
ment. 

Sec.  5.  And  it  be  enacted,  That  before  any  part- 
nership under  this  act,  shall  be  carried  into  effect,  the 
name  or  firm  under  which  the  same  is  to  be  conducted, 

67 


420 


APPENDIX. 


Registry  shall 
desitfnate. 


and  the  names  of  all  the  general  and  special  partners 
interested  therein,  distinguished  separately,  together 
with  their  places  of  residence,  shall  be  registered  in  a 
Register  kept,  book  to  be  kept  for  that  purpose,  at  all  times  open  to 
the  public  inspection,  in  the  office  of  the  clerk  of  the 
county  court  of  the  county  in  which  the  principal 
business  of  the  partnerships  shall  be  carried  on:  and 
if  the  partnership  have  at  any  time  places  of  business 
situated  in  different  counties  of  the  state,  the  name 
and  title  of  the  firm,  shall  be  registered  in  like  man- 
ner in  every  such  county. 

Sec.  6.  And  be  it  enacted,  That  the  said  registry 
shall  also  designate  the  amount  of  the  capital  furnished 
by  every  special  partner,  and  the  period  at  which  the 
partnership  is  to  commence  and  terminate;  and  all 
renewals  or  continuances  of  partnerships,  shall  be 
registered  in  like  manner;  and  all  dissolutions,  and 
alterations  of  the  partnership  prior  to  the  originally 
proposed  continuance  of  the  same,  shall  also  be  regis- 
tered as  aforesaid. 

Sec.  7.  And  be  it  enacted,  That  it  shall  be  the 
duty  of  one  or  more  of  the  general  partners,  at  the 
time  of  registering  as  aforesaid,  to  file  an  affidavit  of 
the  actual  bona  fide  advance  or  payment  of  the  sum  or 
sums  by  the  general  partners,  according  to  the  registry 
of  the  amount  of  the  same,  and  that  no  capital  shall 
be  advanced  to  the  common  stock  or  partnership,  but 
in  cash  payments  by  the  special  partners,  and  such 
affidavit  shall  be  made,  by  one  or  more  of  the  general 
partners  who  are  authorised  by  the  partnership  to 
transact  and  manage  their  concerns,  and  if  any  person 
shall  be  guilty  of  any  false  swearing  in  the  premises, 
he  shall  be  deemed  to  have  committed  perjury,  and 
shall  be  punished  accordingly;  and  it  shall  be  the 
duty  of  all  the  partners  interested  in  any  such  part- 
nership, to  see  that  the  requirements  of  the  5tli,  6th, 
and  7th  sections  of  this  act  are  complied  with;  and  it 
shall  be  the  duty  of  each  special  partner,  to  make  and 
file  in  the  same  manner  an  affidavit  of  the  amount  of 
money  advanced  and  actually  paid  into  said  partner- 
ship fund  by  himself. 

Sec.  8.  And  be  it  enacted,  That  it  shall  not  be 
lawful  for  any  such  partnership,  or  any  member  thereof, 
in  contemplation  of  bankruptcy  or  otherwise,  to  make 
any  such  conveyance  or  gift,  transfer,  or  assignment 
of  his  or  their  property  or  effects,  or  to  confess  any 
judgment  or  create  any  lien  whatsoever  upon  his  or 
their  property  or  effects — with  the  intent  or  for  the 


Affidavits  of 
investments. 

False  swear- 
ing. 


Restrictions 
on  partners. 


APPENDIX.  421 

purpose  of  paying  or  securing  any  one  or  more  of  his 
or  their  creditors,  partners,  or  others:  and  every  such 
sale,  conveyance,  gift,  transfer,  or  assignment,  and 
every  such  judgment  or  other  lien  shall  be,  and  the 
same  is  hereby  declared  utterly  void,  and  the  partner 
or  partners  so  confessing  or  executing  the  same,  or 
knowing  or  consenting  thereto,  shall  be  liable  as  gene- 
ral partners. 

Sec.  9.  And  be  it  enacted.  That  the  general  part-  Accounta- 
ners  in  every  such  partnership,  shall  be  held  liable  to  ^'^''y- 
account  to  each  other  for  their  management  of  their 
joint  concerns,  and  to  the  special  partners,  either  in 
law  or  equity,  according  to  the  law  of  pai'tnership  as 
now  subsisting ;  and  if  any  of  the  partners  shall  be 
guilty  of  fraud  in  the  affairs  of  the  partnership,  be- 
sides making  good  the  party  injured,  he  or  they  shall 
forfeit  and  pay  the  sum  of  ^1000  upon  conviction 
thereof,  to  any  person  who  will  sue  for  the  same,  one 
^alf  to  his  own  use,  and  the  other  half  to  the  use  of 
the  state. 

Sec.  10.  And  be  it  enacted.  That  no  part  of  the 
capital  furnished  by  special  partners,  or  profits  made 
to  them  by  said  partnership,  shall  be  withdrawn,  either 
in  the  shape  of  dividends,  purchase  or  otherwise,  at  Dividends 
any  time  within  the  period  during  which  the  part-  and  claims 
nership  shall  be  continued,  nor  until  the  debts  of  said  Prohibited, 
partnership  shall  have  been  paid,  nor  shall  any  special 
partner  under  any  circumstances,  be  considered    or 
allowed  to  claim  as  a  creditor,  in  case  of  the  insol- 
vency or  bankruptcy  of  the  partnership. 

Sec.  11.  And  be  it  enacted,  That  the  registry  re-  Certificate  re- 
quired by  this  act,  shall  not  be  made  by  the  clerk  of  q'urcd. 
the  county,  or  be  considered  valid  unless  all  the  par- 
ties, general  and  special,  associated  together,  in  every 
such  partnership,  shall  make  and  sign  a  certificate  or 
declaration  before  one  of  the  judges  of  the  judicial  dis- 
tricts of  this  state,  in  which  the  principal  business  of 
the  copartnership  shall  be  carried  on,  containing  the 
statements  required  by  the  5th  and  6th  sections  of  this 
act,  which  shall  be  filed  on  the  records  in  the  said 
clerk's  office,  and  an  exemplification  of  said  certificate 
shall  be  evidence  of  the  matter  tliercin  contained  in 
all  courts  and  places  whatsoever. 

Sec.  12.  And  be  it  enacted,  That  no  general  part-  Permission  to 
ner  shall  be  permitted  to  withdraw  from  the  funds  or  wuiidraw. 
effects  of  said  partnership,  more  than  his  proper  and 
declared  amount  of  profits,  which  shall  be  semi-annu- 


422 


APPENDIX. 


ally  ascertained  and  certified  on  the  books  of  the  con- 
cern by  all  the  partners. 
Suits  to  be  Sec.  13.   And  be  it  enacted,   That  suits  to   be 

brought.  brought  by  any  partnerships  to  be  formed  under  this 
act,  shall  be  in  the  name  or  names  of  the  general 
partners  only,  and  suits  against  such  partnership  shall 
be  brought  against  the  general  partner  only,  except 
in  cases  where  special  partners  shall  be  rendered  lia- 
ble as  general  partners,  in  which  case  suits  may  be 
brought  against  such  special  partners,  together  with 
the  general  partners. 
Notice  re-  Sec.  14.  And  be  it  enacted,  That  it  shall  be  the 

quired.  duty  of  such  partners  to  publish  the  term  of  such 

partnership  as  registered  for  at  least  six  weeks  after 
such  registry  in  one  or  more  of  the  papers  published 
within  the  county  in  which  their  business  shall  be 
Compensation  carried  on,  and  that  the  clerk  of  the  county  court  in 
to  clerlt.         which  such  registers  shall  be  made  shall  be  entitled 
for  every  registry  by  this  act,  to  such  sum  as  they 
are  entitled  to  for  other  records. 
License.  Sec  15.   And  be  it  enacted,  That  every  partner- 

ship or  firm  that  shall  be  established  in  virtue  of  this 
act  shall  annually  take  out  a  license  from  the  clerk  of 
the  county  court,  of  the  county  in  which  such  part- 
nership shall  be  formed,  and  for  which  they  shall  pay 
a  tax  to  the  use  of  the  state,  at  the  time  of  obtaining 
the  same  from  said  clerk,  at  the  rate  of  one  half  of 
one  per  centum  on  the  capital  furnished  by  the  spe- 
cial partners  to  said  partnership. 


(  423  ) 


APPENDIX.— No.  IV. 

OF  LIMITED  PARTNERSHIPS. 

(Rev.  Stat,  of  Mass.  Nov.  4tl],  1835,  ch.  34,  p.  304.) 

Sec.  1.  Limited  partnerships  may  be  formed  except  for  banking  and 
insurance. 

2.  General  and  special  partners,  and  their  liabilities. 

3.  Certificates  to  be  made  by  the  partners,  specifying  names, 
stock,  &-C. 

4.  Certificates  to  be  acknowledged  and  recorded — If  false,  all  ^ 
shall  be  liable  as  general  partners. 

5.  Certificates  to  be  published  for  six  weeks,  otherwise  partner- 
ship shall  be  deemed  general. 

6.  Provision  for  renewal  of  partnerships. 

7.  Partnership  style,  &c. 

8.  Capital  stock  not  to  be  withdrawn,  &c. 

9.  Assignments,  not  valid,  unless,  &c. 

10.  Assent  of  creditors,  to  assignment,  to  be  presumed,  unless, 
•fee. 

11.  Suits  to  be  by  and  against  the  general  partners,  except,  &c. 

12  Dissolution,  how  effected. 

13  Liability  of  partners,  in  cases  not  specially  provided  for. 

14  Equity  jurisdiction  of  supreme  judicial  court. 

Sec.  1.  Limited  partnerships,  for  the  transaction  of  Limited  part- 
mercantile,  mechanical,  or  manufacturing  business  "'^''^'lips  may 
within  this  state,  may  be  formed  by  two  or  more  per-  cept°for\ank- 
sqns,  upon  the  terms,  and  subject  to  the  conditions  ing  and  insu- 
and  liabilities,  prescribed  in  this  chapter;  but  nothing  ranee, 
contained  in  this  chapter  shall  authorise  such  part-  '  '  ^  . 
nerships  for  the  purpose  of  banking  or  insurance. 

Sec.  2.  The  said  partnerships   may  consist  of  one  General  and 
or  more  persons,  who  shall  be  called  general  partners,  special  part- 
and  shall  be  jointly  and  severally  responsible,  as  gen-  J^i''/^' v",'^-,- 
eral  partners  now  are  by  law,  and  of  one  or  more  per-  ^^Qg^ 
sons,  who  shall  contribute  to  the  common  slock  a  spe-  1835,  48  §  2. 
cific  sum,  in  actual  cash  payment,  as  capital,  and  who 
shall  be  called  special  partners,  and  shall  not  be  per- 
sonally liable  for  any  debts  of  the  partnership,  except 
in  the  cases  hereinafter  mentioned. 

Sec.  .3.  The  persons  forming  such  partnerships  certificates  to 
shall  make  and  severally  sign  a  certificate,  which  shall  be  made  by 
contain  the  name  or  firm  under  which  said  partner-  ^'^"^  partners, 
ship  is  to  be  conducted,  the  names  and  respective  names^sfock 
places  of  residence  of  all  the  general  and  special  part-  &,c. 
ners,  distinguishing  who  are  general  and  who  are  ^^"^^^  ^^' ^  ^• 
special  partners,  tlie  amount  of  capital,  which  each 


424 


APPENDIX. 


—  to  be  ac 
knovvledgcd 
and  recorded. 


— if  false,  all 
shall  be  liable 
as  general 
partners. 
1835,  48,  §  4. 
—  to  be  pub- 
lished for  six 
weeks,  other- 
wise, partner- 
ship shall  be 
deemed  gene- 
ral. 
1835,  48,  §  5. 


Provision  for 
renewal  of 
partnerships. 
1835,  48  §  6. 


Partnership 
style,  8cc. 
1835,  48,  §  7. 


special  partner  has  contributed  to  the  common  stock, 
the  general  nature  of  the  business  to  be  transacted,  and 
the  time  when  the  partnership  is  to  commence,  and 
when  it  is  to  terminate. 

Sec.  4.  No  such  partnership  shall  be  deemed  to 
have  been  formed,  until  a  certificate,  made  as  afore- 
said, shall  be  acknowledged  by  all  the  partners,  be- 
fore some  justice  of  the  peace,  and  recorded  in  the 
registry  of  deeds  of  the  county,  in  which  the  princi- 
pal place  of  the  business  of  the  partnership  is  situated, 
in  a  book  to  be  kept  for  that  purpose,  open  to  public 
inspection;  and  if  the  partnership  shall  have  places  of 
business  situated  in  different  counties,  a  copy  of  the 
certificate  certified  by  the  register  of  deeds,  in  whose 
office  it  shall  be  recorded,  shall  be  filed  and  recorded 
in  like  manner,  in  the  office  of  the  register  of  deeds  in 
every  such  county;  and  if  any  false  statement  shall  be 
made  in  any  such  certificate,  all  the  persons  interest- 
ed in  the  partnership  shall  be  liable  as  general  partners, 
for  all  the  engagements  thereof. 

Sec.  5.  The  partners  shall,  for  six  successive  weeks 
immediately  after  such  registry,  publish  a  copy  of 
the  certificate  abovementioned,  in  a  newspaper  print- 
ed in  the  county,  where  their  principal  place  of  busi- 
ness is  situated;  and  if  no  such  paper  be  there  print- 
ed, then  in  a  newspaper  printed  in  the  city  of  Boston; 
and  in  case  such  publication  be  not  so  made,  the  part- 
nership shall  be  deemed  general. 

Sec.  6.  Upon  every  renewal  or  continuation  of  a 
limited  partnership,  beyond  the  time  originally  agreed 
upon  for  its  duration,  a  certificate  thereof  shall  be 
made,  acknowledged,  recorded,  and  published,  in  the 
like  manner  as  is  provided  in  this  chapter  for  the  ori- 
ginal formation  of  limited  partnerships;  and  every 
such  partnership,  which  shall  not  be  renewed,  in  con- 
formity with  the  provisions  of  this  section,  shall  be 
deemed  a  general  partnership. 

Sec.  7.  The  business  of  the  partnership  shall  be 
conducted  under  a  firm,  in  which  the  names  of  the 
general  partners  only  shall  be  inserted,  without  the 
addition  of  the  word  company,  or  any  other  general 
term;  and  the  general  partners  only  sliall  transact  the 
business;  and  if  the  name  of  any  special  partner  shall 
be  used  in  such  firm,  with  his  consent  or  privity,  or 
if  he  shall  personally  make  any  contract  respecting  the 
concerns  of  the  partnership,  with  any  person  except 
the  general  partners,  he  shall  be  deemed  and  treated 
as  a  general  partner. 


APPENDIX.  425 

Sec.  8.  During  the  continuance  of  any  partnership,  Capital  stock, 
under  the  provisions  of  this  chapter,  no  part  of  the  3°^,^''„^''&c.^''' 
capital  stock  shall  be  withdrawn,  nor  any  division  of  18.35,  48,  ^  8. 
interest  or  profits  be  made,  so  as  to  reduce  such  capi- 
tal stock  below  the  sum  stated  in  the  certificates  be- 
fore mentioned;  and  if  at  any  time  during  the  con- 
tinuance, or  at  the  termination,  of  the  partnership,  the 
property  or  assets  shall  not  be  suiTicient  to  pay  the 
partnership  debts,  then  the  special  partners  shall  sever- 
ally be  held  responsible  for  all  sums  by  them  in  any 
way  received,  withdrawn,  or  divided,  with  interest 
thereon  from  the  time  when  they  were  so  withdrawn, 
respectively. 

Sec.  9.  No  general  assignment  by  said  partner-  Assignment 
ship,  in  case  of  insolvency,  or  where  their  goods  and  not  valid,  un- 
estate  are  insufficient  for  the  payment  of  all  their  ^q^s  43  §  8. 
debts,  shall  be  valid,  unless  it  shall  provide  for  a  dis- 
tribution of  the  partnership  property  among  all  the 
creditors,  in  proportion  to  the  amount  of  their  several 
claims,  excepting  the  claims  of  the  government  of  the 
United  States,  arising  from  bonds   for  duties,  which 
are  first  to  be  paid  or  secured. 

Sec.  10.  In  case  of  an  assignment,  as  provided  for  Assent  of  cre- 
in  the  preceding  section,  the  assent  of  the  creditors  '^}^°^^  '°^^' 
shall  be  presumed,  unless  they  shall,  within  sixty  days  bc^presumed, 
after  notice  thereof,  dissent,  either  expressly  or  by  unless,  Sec. 
some  act  clearly  implying  such  dissent;  and  no  such  1835, 48,  §8. 
assignment  shall  be  valid,  unless  notice  thereof  shall 
be  given  in  some  newspaper,  printed  in  the  county 
where  the  place  of  business  of  the  party  making  it  is 
situated,  or  if  no  newspaper  be  printed  in  such  county, 
then  in  some  newspaper  printed  in  the  city  of  Boston, 
within  fourteen  days  after  the  making  of  such  assign- 
ment, provided,  that  notice  of  such  assignment,  made 
by  partners  whose  place  of  business  is  in  Duke's  coun- 
ty or  Nantucket,  shall  be  given  in  some  newspaper 
printed  in  Boston,  within  sixty  days  from  the  date  of 
the  assignment,  in  case  no  newspaper  is  printed  in 
those  counties,  respectively,  where  such  place  of  busi- 
ness is  situated. 

Sec.  11.  All  suits,  respecting  the  business  of  such  Suits  to  be  by 
partnership,  shall  be  prosecuted  by  and  against  the  ^'"^  agamst 
general  partners  only,  except  in  those  cases,  in  which  partncrs^'ex- 
provision  is  made  in  this  chapter  that  the  special  part-  cept,  <fec. 
ners  shall  be  deemed  general  partners,  and  that  special  1835, 48,  §  9. 
partnerships  shall  be  deemed  general  partnerships;  in 
which  cases,  all  the  partners  deemed  general  partners 
may  join  or  be  joined  in  such  suits;  and  excepting  also 


426  APPENDIX. 

those  cases,  where  special  partners  shall  be  held  seve- 
rally responsible,  on  account  of  any  sums  by  them  re- 
ceived or  withdrawn  from  the  common  stock,  as  be- 
fore provided. 
Dissolution,         Sec  12.  No  dissolution  of  a  limited  partnership 
how  effected,   g^all  take  place,  except  by  operation  of  law,  before 
1835,48,H0.^j^g  time  specified  in  the  certificate  before  mentioned, 
unless  a  notice  of  such  dissolution  shall  be  recorded 
in  the  registry,  in  which  the  original  certificate,  or 
the  certificate  of  renewal  or  continuation  of  the  part- 
nership was  recorded,  and   in  every  other  registry 
where  a  copy  of  such  certificate  was  recorded;  and  un- 
less such  notice  shall  also  be  published  for  six  succes- 
sive weeks  in  some  newspaper  printed  in  the  county, 
where  the  certificates  of  the  formation  of  such  part- 
nership were  published,   according  to  the  provisions 
of  this  chapter;  and  if  no  newspaper  shall,  at  the  time 
of  such  dissolution,  be  printed  in  such  county,  then 
the  notice  of  such  dissolution   shall  be  published  in 
some  newspaper  printed  in  the  city  of  Boston. 
Liability  of         Sec.  13.   In  all  cases  not  otherwise  provided  for  in 
partners,  in    ^his  chapter,  the  members  of  limited  partnerships  shall 
dally  provf-"  ^6  Subject  to  all  the  liabilities  and  entitled  to  all  the 
ded  for.  rights  of  general  partners. 

1835, 48,  §11.  Sec.  14.  The  justices  of  the  supreme  judicial  court 
^icUon  o^  s"j  ^^y  ^^^^  ^^^  determine  in  equity  all  questions  arising 
Court.  under  the  provisions  of  this  chapter. 

1835,  48,  §  11. 


(427) 


INDEX. 


ABATEMENT.  .      ,  ,  .     a-- 

Where  one  partner  is  improperly  omitted  as  a  plaintitl  in 
an  action  on  a  contract,  the  defendant  may,  but  is  not 
obliged  to  plead  the  nonjoinder  in  abatement,  134, 135. 
but  where  one  of  several,  who  ought  to  join  in  an  action 
of  tort,  is  omitted,  the  matter  must  be  pleaded  in  abate- 
ment, 136. 
if  one  of  several  part-owners  sue  alone  for  a  tort,  and  the 
defendant  do  not  plead  in  abatement,  the  other  part- 
owners  may  afterwards  sue  separately,  137. 
partner  guilty  of  fraud,  in  respect  of  the  particular  con- 
tract, cannot  plead  in  abatement,  159.  166.  n. 
in  actions  on  contracts  against  partners,  the  nonjoinder  of 
any  of  them  must  be  pleaded  in  abatement,  165 — 170. 
the  objection  cannot  otherwise  be  made  available,  167. 
plea  in  abatement  for  nonjoinder  must  state  all  the  parties 

liable,  ibid. 
and  must  answer  the  whole  writ  or  declaration,  ibid. 
what  evidence  will  disprove  such  a  plea,  16S. 
pleas  in  abatement  are  not  favoured  by  the  court,  ibid. 
court  will  order  the  places  of  abode  and  additions  of  the 

parties  whose  nonjoinder  is  pleaded  to  be  given,  169. 
in  actions  on  joint  bonds,  deeds,  or  bills  of  exchange,  a 
single  contractor,  who  is  sued,  must  plead  in  abatement, 
ibid. 
rule  applies  to  an  action  of  debt  on  stat.  9  Anne,  c.  14., 

170. 
plea  in  abatement  not  necessary  where  the  plaintiff  sets 

out  in  the  pleadings  a  joint  contract,  ibid. 
and  shows  that  the  contractors  not  joined  are  alive,  ibid. 
objection  to  the  nonjoinder  of  a  joint  contractor,  171. 
a  partner  who  has  become  a  bankrupt  and  obtained  his 
certificate,  must  be  joined,  if  the  other  partners  plead 
his  nonjoinder  in  abatement,  175. 
to  a  plea  in  abatement  for  the  nonjoinder  of  a  partner,  the 
plaintiff  may  reply  that  he  was  an  infant,  when,  175 — 
178. 
plea  in  abatement  that  there  is  a  dormant  partner  not 

joined,  when  sustainable,  178,  179. 
whether  a  plea  in  abatement  can  be  supported  in  an  action 
ex  quasi  contractu,  quxre,  181 — 184. 
68 


428  INDEX. 

ABATEMENT— conlinued. 

such  a  plea  is  not  good  in  an  action  for  a  tort,  184,  185. 
where  a  defendant  pleads  in  abatement  that  he  promised 
jointly  with  A  and  B,  A  may  prove  that  the  defendant 
was  not  authorised  by  the  partners,  201. 
so  he  may  prove  that  the  defendant  was  authorized,  202. 

ACCOUNT. 

Of  the  action  of  account  between  partners,  69,  70. 

an  action  of  covenant  will  lie  on  a  covenant  to  account 
annually,  71. 

bill  in  equity  for  an  account,  93.     See  tit.  Equity. 

of  a  plea  of  a  stated  account,  100 — 102. 

when  partners,  carrying  on  the  trade  after  a  dissolution 
with  the  partnership  effects,  must  account  to  the  others 
for  their  shares  of  the  profits  made,  255. 

joint  creditors  are  not  entitled  to  an  account  of  the  pro- 
perty of  a  partnership,  of  which  an  uncertificated  bank- 
rupt was  a  member,  against  the  assignees  under  the 
first  commission,  261.  n. 

solvent  partner  carrying  on  trade  with  the  joint  capital 
after  the  bankruptcy  of  his  partner,  must  account  to 
the  assignees  for  their  share  of  the  profits,  302. 

and,  under  such  circumstances,  the  surviving  partner  must 
account  to  the  representatives  of  the  deceased  partner, 
354. 

how  a  defendant  must  proceed  where  the  plaintiffs,  call- 
ing for  an  account,  have  got  all  the  vouchers,  357. 

when  the  surviving  partner  does  not  account  with  the 
executors  of  the  deceased  within  a  reasonable  time,  a. 
court  of  equity  will  enjoin  him  from  disposing  of  the 
stock  and  receiving  the  debts,  352. 

ACCOUNTS. 

Mode  of  taking  accounts  between  partners,  105,  106. 
where  the  articles  contain  clauses  prescribing  the  mode, 

105. 
where  those  clauses  have  not  been  acted  upon,  ibid. 

what  allowances  are  made,  ibid. 
when  interest  is  chargeable  on  money  borrowed,  106. 
where  the  number  of  partners  exceeds  two,  the  death  of 

one  operates  a  dissolution  of  the  partnership,  and  the 

accounts  are  taken  down  to  the  time  of  his  death,  219. 
how  taken  between  partners  after  a  dissolution,  236. 
under  a  joint  commission  of  bankruptcy,  distinct  accounts 

of  the  joint  and  separate  estates  are  to  be  kept,  281. 
where  persons  in  trade  have  been  connected  in  various 

partnerships,   and  a  joint   commission   issues   against 

them  all,  an  order  may  be  made  for  keeping  distinct 


INDEX. 


429 


AC  COVNTS— continued. 

accounts  of  the  different  partnerships,  as  well  as  of  the 
separate  estates,  282. 

but  where  there  have  been  various  partnerships,  and  a 
joint  commission  against  one  firm,  in  which  some  of 
the  parties  were  not  engaged,  there  can  only  be  the 
common  order  for  distinct  accounts  of  the  joint  and 
separate  estates,  ibid. 

distinct  accounts  may,  on  petition,  be  ordered  to  be  kept 
under  a  separate  commission,  311. 

but  where  two  separate  commissions  are  taken  out,  distinct 
accounts  will  not  be  ordered  under  each,  311. 
[  where  distirfct  accounts  have  been  ordered,  the  represen- 

tative of  the  solvent  partner  may,  by  petition,  apply  for 
an  account  of  the  surplus,  notwithstanding  it  has  been 
paid  over  to  the  bankrupt,  ibid. 

the  nominee  of  a  deceased  partner  cannot  insist  on  having 
the  accounts  taken  before  electing  to  become  a  partner, 
350. 

of  accounts  between  a  surviving  partner  and  the  executors 
of  a  deceased  partner,  353. 

how  they  are  taken,  ibid. 

a  surviving  partner  will  be  allowed  a  compensation  for 
carrying  on  the  business,  where  he  is  under  no  obliga- 
tion to  do  so,  355. 

aliter,  if  he  is  bound  to  carry  it  on,  ibid. 

when  he  will  be  allowed  a  moiety  of  expenses  incurred  by 
him,  ibid.  n. 

ACT  OF  BANKRUPTCY. 

Trover  will  not  lie  by  the  assigness  of  a  bankrupt  partner 
for  goods  disposed  of  by  the  solvent  partner  after  the 
act  of  bankruptcy,  91.  306. 

aliter  of  goods  disposed  of  by  the  bankrupt  partner,  305. 

where  money  is  paid  by  one  partner  after  he  had  commit- 
ted an  act  of  bankruptcy,  the  defendant,  in  an  action  to 
recover  it,  cannot  set  off  a  debt  due  to  him  from  the 
firm,  139. 

act  of  bankruptcy  by  one  partner  a  dissolution  of  the  part- 
nership, when,  227. 

must  be  committed  by  each  partner  to 

support  a  joint  commission,  257. 
when  they  must  be  committed,  258. 

what  are  joint  acts  of  bankruptcy,  258 — 260. 

power  of  the  solvent  partner  to  dispose  of  the  partnership 
effects  after  the  bankruptcy  of  his  copartner,  306 — 308. 


430  INDEX. 

ACTION. 

Of  the  action  of  account  between  partners,  69. 

covenant,  70.     See  tit.  Covenant. 
assumpsit,  72.     See  tit.  Assumpsit. 

in  what  cases   partners  must 
join  or  sever,  87,  88. 
trover,  90.     See  tit.  Trover. 
of  the  proper  parties  in  actions  on  contracts  by  partners 
against  strangers,  125 — 132. 

must  all  join,  125 — 129. 

unless  there  be  a  severance  by  the  act  of  the  de- 
fendant, 129. 
assignees  of  bankrupt  partner  must  sue  jointly 

with  the  solvent  partner,  127. 
infant  partner  must  join,  128. 
dormant  partner  may,  but  need  not  join,  ibid. 
nominal  partner  need  not  be  joined,  ibid. 
no  more  than  the  persons  really  interested  must 
join,  130. 
of  the  proper  parties  in  actions  on  contracts  by  surviving 
partners,  131:  358. 

by  joint  stock 

companies, 

132, 133. 

who  must  join  in  actions  ex  delicto,  133. 

how  advantage  is  to  be  taken  of  the  omission  of  proper 

parties  in  actions  by  partners  upon  contracts,  134,  135. 

in  actions  of  tort,  136,  137. 

evidence  in  actions  by  partners  against  strangers,  139 — 

142. 
of  the  proper  parties  as  defendants  in  actions  on  contracts 
against  partners,  165 — 181. 

ought  all  to  be  joined,  165. 
but  nonjoinder  of  any  must  be  pleaded  in 
abatement,  ibid. 
of  the  proper  parties  in  actions  against  surviving  partners, 

172.  358. 

against  joint  stock  compa- 
nies, 179—181. 

it  is  doubtful  whether  a  plea  in  abatement  can  be  support- 
ed in  an  action  ex  quasi  contractu,  181 — 184. 

such  a  plea  is  not  good  in  an  action  for  a  tort,  184, 185. 

evidence  in  actions  against  partners,  190 — 202. 

where  a  solvent  partner  after  the  bankruptcy  of  his  copart- 
ner pays  a  joint  debt,  an  action  will  not,  it  seems,  lie  to 
recover  a  moiety,  307.  344. 

where  a  partner  brings  an  action  against  his  copartner  for 


INDEX.  431 

ACTlOlSi— continued. 

one  debt,  and  afterwards  has  a  claim  entered  under  the 
commission  against  him  for  a  different  debt,  the  claim 
has  been  held  an  election  as  to  both  debts,  328. 
creditor  may  prove  for  one  debt  and  afterwards  bring  an 

action  for  a  distinct  one,  329.  n. 
to  constitute  distinct  debts,  it  is  not  necessary  they  should 
be  of  distinct  natures,  but  only  that  they  should  arise 
on  distinct  contracts,  ibid. 
of  actions  by  the  solvent  partner  and  the  assignees  of  a 
bankrupt  partner,  340. 

by  the  assignees  under  a  joint  commission,  342. 
under    separate    commissions, 
344. 
ADMISSION.     See  tit.  Limitations,  Statute  of. 

An  admission  by  one  partner,  after  the  fact  of  the  partner- 
ship is  established,  is  binding  on  the  firm,  63.  193. 
admission  by  one  partner,  after  a  dissolution,  when  bind- 
ing, 64.  196. 
as  to  a  transaction  which  oc- 
curred previous  to  the  part- 
nership, when  binding,  65. 
197. 
by  a  party  that  he  is  a  partner,  conclusive  against 
him,  192. 

but  not  evidence  of 

partnership  against 

the  others,   193. 

where  two  persons  are  proved  to  be  partners,  an  admission 

by  one  that  a  bill  was  drawn  by  them,  is  evidence 

against  both,  194. 

the  admission  of  one  part-owner  of  a  ship  is  not  binding 

upon  the  others,  ibid.  n. 
the  admissions  of  the  acceptor  of  a  joint  bill  of  exchange 
in  his  answer  to  a  bill  in  equity  are  not  evidence  against 
the  firm,  ibid.  n. 
admission  by  a  partner,  not  a  party  to  the  suit,  when  evi- 
dence against  his  partners,  195. 
AFFIDAVIT. 

Affidavit  made  by  one  partner  of  a  joint  debt,  when  suffi- 
cient, 142. 
AGENT. 

One  partner  may  act  in  the  character  of  agent  for  the  firm, 

42. 
power  of  a  joint  agent  to  receive  debts  may  be  counter- 
manded by  any  one  of  the  partners,  252. 
under  a  joint  commission  the  separate  creditors  will  be 


432  INDEX. 

AGENT — continued. 

permitted  to  appoint  an  agent  for  the  separate  estates, 
when,  281. 
formerly  an  agent  would  have  been  appointed  for  the  joint 
estate  under  a  separate  commission,  310. 
AGREEMENT. 

Agreement  that  participator  in  profit  shall  not  be  liable 
for  losses  does  not  obviate  his  liability,  16. 
is  binding  between  the  parties,  ibid. 
that  a  party  shall  not  participate  in  profit,  nor  be 
liable  for  loss,  conclusive  against  a  creditor  who 
is  apprised  of  it,  25,  158. 
for  a  partnership  specifically  enforced  in  equity, 

109. 
not  if  the  partnership  may  be  immediately  after 

dissolved,  110. 
by  way  of  deposit  of  title-deeds  as  a  security  to  a 
firm  may  be  extended  by  a  subsequent  agree- 
ment for  the  security  of  a  new  sum  on  a  change 
of  partners,  125. 
by  way  of  deposit  with  a  firm  of  five  extended  to  a 

firm  of  four,  ibid. 
that,  on  the  death  of  one  of  two  partners,  the  bu- 
siness shall  be  carried  on  by  his  representatives, 
does  not  extend  to  admit  the  representatives  of 
the  other,  221. 
between  partners  that  the  joint  property  shall  be- 
come the  separate  estate  of  one  or  more  of  the 
partners,  when  valid,  238.  254.  267 — 271. 
made  on  a  dissolution  that  a  particular  book  should 
belong  to  one  partner,  and  that  a  copy  of  it  should 
be  delivered  to  the  other,  enforced  in  equity, 
255. 
between  partners  that  on  the  bankruptcy  of  one 
his  share  shall  be  taken  by  the  others  at  a  valu- 
ation, whether  valid,  qusere,  300. 
ALLOWANCE. 

Partners  entitled  to  an  allowance  under  a  joint  commis- 
sion, 296. 
but  not  to  a  double  allowance,  one  in  respect  of  the  joint 

and  the  other  of  the  separate  estate,  ibid. 
the  two  estates  are  to  be  blended  to  ascertain  whether  one 

allowance  is  to  be  made,  ibid. 
bankrupt  under  a  joint  commission  paying  \0s.  in  the 
pound  on  the  joint  estate,  is  not  entitled  to  an  allow- 
ance, unless  the  separate  estate  paid  the  same  dividend, 
ibid. 


INDEX.  433 

ALLOWANCE— con^mi/erf. 

bankrupt  under  a  separate  commission  paying  18s.  in  the 
pound  on  the  joint  estate,  and  2*.  on  the  separate  estate, 
not  entitled  to  an  allowance,  ibid. 

bankrupt  under  separate  commission  paying  20.?.  in  the 
pound  to  separate  creditors,  not  entitled  to  an  allowance 
against  the  right  of  joint  creditors  to  the  surplus,  297. 

one  partner  may  be  entitled  to  an  allowance  though  the 
other  is  not,  ibid. 

separate  estate  of  one  partner  paying  206-.,  and  surplus 
carried  to  joint  estate,  which  paid  12*.  6d.,  entitles  him 
to  an  allowance,  although  no  sufficient  dividend  paid  on 
the  separate  estates  of  the  other  partners,  ibid. 

allowance  not  payable  until  a  final  dividend  is  made,  ibid. 
ANNUITY. 

Grant  of  an  annuity  to  a  retiring  partner  does  not  continue 
his  liability,  when,  20.  237. 

when  it  docs,  21.  237. 

where  an  annuity  granted  to  a  retiring  partner  is  condi- 
tioned to  be  void  on  the  eviction  of  the  continuing 
partner  fi'om  the  partnership  premises  without  any  col- 
lusion of  his  own,  his  bankruptcy  is  not  an  eviction, 
237. 
APPEARANCE. 

How  a  plaintiff  must  proceed  where  partners,  after  having 
been  arrested  or  served  with  copies  of  a  writ,  neglect  to 
appear,  163. 

one  partner  may  appear  for  his  copartners,  ibid. 

to  compel  the  appearance  of  partners  abroad,  joint  property 
in  England  may  be  distrained,  or  the  partners  may  be 
outlawed,  164. 

but  the  separate  property  of  one  partner  cannot  be  dis- 
trained, ibid. 

the  court  will  not  discharge  a  partner,  who  is  a  prisoner, 
before  the  outlawry  is  complete  against  his  copartners, 
unless  he  will  appear  for  all,  ibid. 

appearance  of  partners  as  defendants  in  equity.  213. 
APPRENTICESHIP. 

A  partner  not  acting  or  interfering  in  the  trade,  is  not 
liable  to  the  penalties  of  the  statute  of  apprenticeship, 
158. 
ARBITRATION. 

One  partner  cannot  bind  another  by  a  submission  to  arbi- 
tration, (!>^. 

but  if  he  engage  that  his  partner  shall  perform  the  award, 
he  will  be  answerable,  67. 

an  action  at  law  docs  not  lie  on  a  covenant  to  refer  dis- 
putes to  arbitration,  72.  89. 


434  INDEX. 

ARBITRATION— con/mwec?. 

may  be  maintained  notwithstanding  an  agree- 
ment to  refer  the  matter  in  dispute,  89. 
agreement  to  refer  disputes  cannot  be  pleaded  to  a  bill  in 
equity,  103. 

nor  can  it  be  made  the  subject 
of  a  bill  for  a  specific  per- 
formance, ibid. 
but  it  may  be  urged  as  a  reason 
why  the  court  should  not  in- 
terfere summarily,  until  resort 
has  been  had  to  that  mode  of 
redress,  104. 
a  partnership  may  be  dissolved  by  an  award,  229. 
ARTICLES  OF  PARTNERSHIP. 

A  covenant  in  articles  that  no  partner  shall  carry  on  the 

same  business  for  his  own  benefit  is  permitted,  7. 
partnership  is  regulated  by  articles  where  they  exist,  8,  9. 
the  subsequent   transactions  of  partners  may  supersede 

clauses  in  the  articles,  9.  105. 
a  partnership  commenced  by  articles  unsealed,  may  be  dis- 
solved by  a  verbal  notice,  224. 
ASSETS.  _ 

Notice  of  the  death  of  a  partner  is  not  necessary  to  protect 

his  assets  from  future  liability,  248.  n.  362. 
where  a  partner,  who  has  covenanted  to  indemnify  his  co- 
partner against  the  joint  debts,  dies,  equity  will  apply 
his  assets  in  discharge  of  those  debts,  357. 
of  the  liability  of  the  assets  of  a  deceased  partner  in  equity, 

359 — 362. 
They  are  not  liable  in  respect  of  claims  that  were  not  con- 
summate at  the  time  of  his  death,  361. 
what  sort  of  dealing  with  the  survivors  operates  a  dis- 
charge, 362 — 365. 
when  the  creditors  of  the  surviving  partners  can  compel 
the  joint  creditors  of  the  firm  to  go  against  the  assets  of 
a  deceased  partner,  366 
real  assets  of  a  deceased  partner  liable,  367. 
but  the  trade  must  continue  until  the  time  of  his  death,  368. 
ASSIGNEES. 

The  assignee  of  a  partner,  who  does  not  act  as  a  partner, 

is  not  liable  for  losses  inter  se,  11. 
an  assignee  who  acts  as  a  partner  is  liable  to  contribute  to 
losses  during  that  time,  but  he  may  rid  himself  of  that 
liability  by  assigning  to  an  insolvent,  12.  n. 
If  two  out  of  three  assignjees  pay  the  whole  of  the  soli- 
citor's bill,  they  must  bring  separate  actions  for  con- 
tribution against  the  third,  87. 


INDEX.  435 

ASSIGISIEES— continued. 

if  one  of  two  assignees  sue  in  trover,  the  omission  cannot 
be  pleaded  in  abatement,  137.  n. 

aliter  in  an  action  on  a  contract,  146 — 148.  371. 

assignees  must  keep  distinct  accounts  of  joint  and  separate! 
estates  under  a  joint  commission,  262 — 281. 

what  passes  to  assignees  by  the  assignment  under  a  joint 
commission,  266 — 280. 

separate  creditors  cannot  vote  for  assignees  under  a  joint 
commission,  280. 

but  an  inspector  will  be  appointed  of  the  separte  estates 
where  they  are  insufficient  to  pay  the  separate  creditors, 
281. 

assignees  of  a  bankrupt  partner  are  tenants  in  common 
with  the  solvent  partner  of  the  joint  effects,  298. 

what  passes  to  assignees  by  the  assignment  under  a  sepa- 
rate commission,  299 — 304. 

assignees  entitled  to  their  full  share  of  the  profits  of  an  ad- 
venture, although  the  creditors  who  supplied  the  means 
to  fit  it  out  can  only  have  a  dividend,  301. 

where  a  solvent  partner,  after  an  act  of  bankruptcy  by  his 
copartner,  pays  a  joint  debt,  an  action,  it  seem,  will  not 
lie  by  the  assignees  to  recover  a  moiety,  307. 

on  the  application  of  the  solvent  partner  the  assignees  of  a 
bankrupt  partner  will  be  restrained  from  selling  joint 
property,  309. 

but  not  on  the  application  of  the  joint  creditors,  ibid.  n. 

assignees  under  a  separate  commission  may  be  compelled 
to  administer  the  whole  joint  estate  where  the  other 
partner  is  dead  or  abroad,  ibid. 

formerly  joint  creditors  could  not  vote  in  the  choice  of 
assignees  under  a  separate  commission,  310. 

but  now,  where  a  commission  issues  against  one  or  more 
partners  of  a  firm,  joint  creditors  may  prove  their  debts 
for  that  purpose,  316. 

assignees  may,  on  petition,  be  ordered  to  keep  distinct 
accounts  under  a  separate  commission,  311. 

but  where  two  separate  commissions  issue  distinct  accounts 
will  not  be  orderred  under  each,  ibid. 

of  action  by  a  solvent  partner  and  the  assignees  of  a  bank- 
rupt partner,  340. 

when  the  assignees  of  a  bankrupt  partner  may  use  the 
name  of  the  solvent  partner  in  bringing  actions,  342. 

of  actions  by  the  assignees  under  a  joint  commission,  ibid. 
how  they  are  to  declare  when  suing  for  a  joint 
debt,  ibid. 

when  suing  for  a  separate 
debt,  343. 
69 


436 


INDEX. 


ASSIGNEES— con/inweo?. 

of  actions  by  assignees  under  separate  commissions,  344. 
how  they  must  declare  for  a  joint  debt,  345. 
ASSIGNMENT. 

Assignment  by  the  commissioners  of  a  bankrupt's  estate 
relates  to  the  first  act  of  bankruptcy  committed  sub- 
sequently to  the  petitioning  creditor's  debt,  228.  n. 

by  one  partner  of  joint  property  to  secure  his 
separate  debt  remains    subject  to  the  joint 
debts,  236. 
under   a  joint  commission,  what  passes  by 

it,  266 — 2 SO. 
by  one  partner  to  the  others  of  his  interest  in 
the  joint  estate,  when  it  operates  a  conver- 
sion, 238.  254.  267 — 271. 
where  it  is  conditional,  255.  274. 
need  not  be  in  writing,  but  must  be  express, 

268. 
by   one    of    three  partners   of    his   interest 
to  one  of  the  othor  two  does  not  discharge 
it  from  joint  debts,  269. 
the  bona  fides  of  the  transaction  to  be  ex- 
amined, ibid. 
to  divest  joint  creditors  of  their  right  of  treat- 
ing the  property  assigned  as  joint  estate, 
the  transmutation  must  be  complete  before 
the  bankruptcy,  ibid. 
debts  due  to  a  partnership  which  are  assigned 
by  some  to  the  other  partners  remain  in  the 
ordering  of  the  partnership,  until  notice  of 
the  assignment  is  given  to  the  debtors,  275. 
under  a  separate  commission,  what  passes  by 
it,  299 — 304. 
ASSUMPSIT.     See  tit.  Action,  and  Abatement. 

Action  of  assumpsit  between  partners,  72 — 88. 

when  it  lies  for  breach  of  an  agreement  to  become  a- 
partner,  72. 

to  recover  the  proportion  of  a  joint  pur- 
chase, 73. 
for  not  supplying  the  manuscript  of   a 
a  work  to  be  printed  on  the  joint  ac- 
count, ibid. 
to  recover  a  sum  due  on  a  balance  struck, 

ibid. 
where  the  balance  is  final  and  not  pre- 
paratory only  to  a  final  account,  74. 
and  where  there  has  been  an  express  pro- 
mise lo  pay  it,  75. 


INDEX. 


437 


ASSUMPSIT— con^mwe^. 

where  part  of  the  joint  funds   are  ex- 
pressly appropriated  to  the  use  of  one 
V  partner,  ibid. 

to  recover  money  received  to  the  sepa- 
rate use  of  one  partner,  76. 

money  entrusted  to  a  member 
of  a  benefit  club,  77. 
when  it  does  not  lie  on  an  express  promise,  ibid. 
when  it  lies  to  enforce  contribution,  79.    See  tit.  Contri- 
bution. 

to  recover  money  paid  by  one  partner  on  a  bill 
drawn  by  the  other  after  a  dissolution,  87. 
to  an  action  of  assumpsit  by  several  partners,  the  defen- 
dant may  plead  the  bankruptcy  of  one  of  them  in  bar, 
128.  341. 
when  a  solvent  partner  may  maintain  assumpsit  against  the 
sheriff  for  seizing  and  selling  joint  effects,  211. 
ATTACHMENT. 

Attachment  out  of  lord  mayor's  court  against  partnership 
effects  cannot  be  sustained  where  it  is  overreached  by 
an  act  of  bankruptcy,  308. 
aliter  of  an  attachment  in  the  colonies  which  are  not  sub- 
ject to  the  bankrupt  laws,  ibid. 
ATTAINDER. 

Attainder  of  a  partner  for  treason  or  felony  vests  all  the 
partnership  effects  in  the  crown,  216. 
ATTORNEY. 

The  clerk  of  an  attorney  who  transacts  business  on  his 
own  account,  but  makes  an  allowance  of  part  of  the 
profits  to  the  attorney,  is  a  partner  with  him,  15. 
an  agreement  between  an  attorney  and  an  unqualified  per- 
son to  assist  in  the  business  and  share  the  profits  is  ille- 
gal, ib.  n. 
aliter  of  such  an  agreement  between  the  widow  of  a  de- 
ceased attorney  and  her  son,  ibid. 
where  attornies  are  in  partnership,  either  of  them  is  liable 
to  the  penalty  for  practising  without  a  certificate,  162. 
but  they  cannot  be  sued  together  as  for  one  offence,  ibid. 
where  attornies  in  partnership  are  employed  by  a  client, 
neither  of  them  can  act  against  him  after  a  dissolution, 
225. 
AWARD.     See  tit.  Arbitration. 
BANK  OF  ENGLAND. 

No  body  corporate  or  partnership  consisting  of  more  than 
six  persons,  except  the  bank  of  England,  can  borrow  on 
their  notes  payable  on  demand,  or  at  any  time  less  than 
six  months  from  the  time  of  borrowing,  27. 


438  INDEX 

BANK  OF  ENGLAND— continued. 

a  partner  in  a  Scotch  banking  house  taking  an  office  and 
issuing  their  notes  in  England,  is  within  the  act,  28. 

a  commercial  company  who  are  not  bankers,  is  not  ibid. 

secus,  if  the  company  be  not  established  for  trading  pur- 
poses, ibid  ;  sed  quaere,  and  see  ibid.  n.  (c). 

unless  an  act  of  parliament  empowers  them,  ibid. 

where  a  company  is  empowed  to  raise  money  for  a  special 
purpose,  the  purpose  must  be  expressed  on  the  face  of 
their  notes,  ibid.  \ 

BANKERS. 

Firm  of  bankers,  when  liable  for  a  prize  in  the  lottery,  37. 

w^hat  is  notice  of  a  change  in  a  firm  of  bankers,  248. 

partner  in  a  banking  firm  who,  after  obtaining  his  certifi- 
cate, takes  up  the  notes  of  the  firm,  admitted  to  prove 
against  the  joint  estate  in  bankruptcy,  292. 

agreement  between  a  customer  and  a  firm  of  four  bankers, 
that  the  former  should  pay  into  the  bank  indorsed  bills, 
and  should  take  in  return  the  bankers'  promissory 
notes,  vests  in  the  bankers  the  property  in  all  bills  paid 
in  before  their  bankruptcy,  304. 

but  under  such  an  agreement  the  property  in  bills  paid  in 
after  the  bankruptcy  of  one  or  more  of  the  partners  re- 
mains in  the  customer,  ibid. 

a  customer  by  drawing  drafts  on  the  survivor  of  two 
bankers,  does  not  release  the  estate  of  the  deceased 
from  a  debt  due  from  the  firm  at  the  time  of  his  death, 
363. 

when  the  estate  of  the  deceased  is  discharged  by  subse- 
quent dealings  with  the  survivor,  364. 

BANKRUPTCY.     See  tit.  Allowance,  Assignees,  Certifi- 
cate, Commission  of  Bankruptcy,  &c. 

One  partner  may  bind  another  by  deed  in  bankruptcy,  60. 
make  the  affidavit  grounding  the  com- 
mission, 68. 
execute  the  bond  to  the  lord  chancellor, 

ibid. 
prove  debts,  ibid. 

vote  in  the  choice  of  assignees,  ibid. 
give  a  power  of  attorney  to  another  to 

act  for  the  firm,  ibid. 
sign  the  bankrupt's  certificate  after  a  dis- 
solution, ibid. 
the  act  of  one  partner  in  bankruptcy  considered  as  the  act 

of  all,  ibid. 
a  commission  against  a  debtor  to  a  firm  on  the  petition  of 
a  solvent  partner  is  regular,  ibid. 


INDEX. 


439 


BANKRUPTCY— cow^mwec?. 

petition  in  bankruptcy  signed  by  one  partner  in  the  pai't- 

nership  name  is  insufficient,  ibid.  n. 
to  assumpsit  by  several  partners,  the  defendant  may  plead 

the  bankruptcy  of  one  of  them  in  bar,  128.  341. 
in  an  action  against  a  firm,  a  partner  who  has  become  a 
bankrupt  and  obtained  his  certificate,  must,  where  his 
nonjoinder  is  pleaded,  be  made  a  defendant,  175. 
if,  when  joined,  he  plead  his  bankruptcy,  a  nolle  prosequi 

may  be  entered,  ibid. 
what  counts  may  be  joined  in  an  action  against  the  solvent 

partner,  ibid. 
a  partner  who  pleads  his  bankruptcy  is  rendered  a  com- 
petent witness  for  the  defendants,  if  the  plaintiff  enters 
3l  nolle  prosequi,  199.' 
but  if  issue  be  taken  on  the  plea  he  cannot  be  admitted, 

ibid. 
nor,  in  such  a  case  is  he  on  proof  of  his  certificate  entitled 

to  a  verdict  during  the  progress  of  the  cause,  ibid. 
a  partnership  is  dissolved  by  the  bankruptcy  of  all  or  any 
of  the  partners,  218.  227—229. 

unless  the  commission  be  fraudulently 

taken  out  for  that  purpose,  228,  229. 

from  what  time  the  dissolution  takes 

place,  229. 

of  the  bankruptcy  of  partners  under  a  joint  commission, 

256—297. 
allowance  to  partners  under  a  joint  commission,  296. 
of  the  bankruptcy  of  a  single  partner,  324 — 358. 
effect  of  it,  298. 

it  determines  the  control  of  the  bank- 
rupt over  the  joint  estate,  305. 
but  not  of  the  solvent  partner,  306. 
where  a  creditor,  who  has  proved  under  the  commission, 
joins  the  bankrupt  in  an  action  against  the  solvent  part- 
ner he  must  indemnify  him,  329. 
of  the  certificate  under  joint  or  separate  commissions,  329 

—331. 
of  the  right  of  set-off  under  partnership  bankruptcies,  331 

—340. 
where  two  partners  have  stopped,  and  one  is  a  bankrupt, 
a  debtor  cannot  refuse  to  pay  money  due  to  them,  341. 
of  superseding  a  commission  against  partners,  346. 
BILLS  OF    EXCHANGE  AND    PROMISSORY  NOTES. 
See  tit.  Limitations,  Statute  of. 

Where  a  company  is  empowered  to  raise  money  for  a 
special  purpose  only,  they  must  express  that  purpose  on 
the  face  of  their  negotiable  securities,  28. 


440  INDEX. 

BILLS  OF  EXCHANGE,  ^c— continued. 

one  partner  may  bind  the  firm  by  making,  &c.  joint  bills 

or  notes,  38,  39,  147. 
power  to  do  so  within  the  scope  of  his  general  authority, 

38. 
may  indorse  bills  in  a  different  name  from  that  of  the  firm, 

when,  39. 
in  what  cases  binding  when  made  by  a  partner  in  his  in- 
dividual name,  39,  40. 
partner  individually  liable,  when,  39. 
partners  bound  by  a  bill  pledged  in  a  separate  transaction, 
when,  41. 
when  not  42. 
it  is  fraudulent  for  a  separate  creditor  to  take  a  joint  secu- 
rity for  his  debt,  ^2,  43. 
partners  are  not  bound  by  a  bill  where  the  least  fraud  is 

discoverable  on  the  part  of  the  holder,  43,  44. 
as  where  a  joint  security  is  given  by  one  partner  in  dis- 
charge of  an  antecedent  debt  due  from  himself,  43. 
bill  accepted  by  on^  partner  for  a  debt  contracted  by  him- 
self and  another  before  the  formation  of  a  partnership 
with  a  third,  does  not  bind  the  third,  44. 
covin  avoids  a  bill  in  the  hands  of  the  covinous  holder, 

ibid. 
partners  are  liable  on  a  bill  in  a  separate  transaction  if 
taken   by   a    person   ignorant    of    the   circumstances, 
45—48. 

to  the  bona  fide  indor- 
see of  the  original 
fraudulent  holder,46. 
151. 
notwithstanding  a  stipu- 
lation in  the  articles 
that  bills  shall  not  be 
circulated,  47. 
issued    by    their    clerk, 

when,  ibid. 
although  the  holder  after- 
wards  discovers  the 
misconduct  of  the  sin- 
gle partner,  48. 
partners  in  a  particular  concern  only  are  not  liable  on  bills 
drawn  by  one  partner  in  the  joint  name  in  relation  to 
another  concern,  ibid. 
where  several  partnerships  carry  on  business  under  the 
same  firm,  the  holder  of  a  bill  may  proceed  against 
either  of  them,  when,  48.  158. 


INDEX.  441 

BILLS  OF  EXCHANGE,  ^a.— continued. 

power  of  one  partner  to  draw  bills  is  only  implied,  48. 

the  holder  of  a  bill  apprised  of  a  negative  stipulation  in 
the  articles  cannot  sue  the  firm,  49. 

and  express  notice  from  the  rest  of  the  partners  that  they 
would  not  be  liable,  exempts  them,  ibid. 

power  of  one  partner  to  bind  the  firm  in  bill  transactions 
ceases  on  a  dissolution  of  the  partnership,  ibid.  251. 

where  a  dissolution  is  agreed  upon,  a  party  who  knows  of 
it  cannot  charge  the  firm  with  a  subsequent  acceptance 
by  one  partner  without  showing  that  the  intention  ta 
dissolve  was  abandoned,  49. 

even  if  the  bill  existed  prior  to  the  dissolution,  it  cannot 
be  afterwards  endorsed,  50.  251. 

nor  can  it  be  negotiated,  although  endorsed  before,  50. 

an  express  authority  to  one  partner  to  receive  debts  after  a 
dissolution,  does  not  empower  him  to  draw  a  bill,  49. 

not  even  upon  a  debtor  to  the  house,  ibid. 

where  the  dissolution  is  not  made  notorious,  the  partners 
are  liable  on  bills  afterwards  issued,  50. 

a  member  of  a  company  cannot  sue  the  company  on  a  bill 
drawn  on  the  directors  and  accepted  by  the  secretary  on 
their  behalf,  78. 

a  court  of  equity  will  restrain  a  partner  from  negotiating 
bills  on  his  private  account,  108. 

will  restrain  a  third  person  from  negotiat- 
ing bills  he  may  have  taken  from  one 
partner  in  fraud  of  the  others,  ibid. 

a  bill  given  by  one  concern  to  another  in  which  an  indivi- 
dual is  a  common  partner  cannot  be  enforced  at  law, 
118. 

satisfaction  of  a  security  to  one  firm  is  a  satisfaction  to  the 
other  where  there  is  a  common  partner,  120. 

an  action  upon  a  bill  is  not  maintainable  against  the  ac- 
ceptor by  a  firm,  where  one  partner  agrees  to  provide 
for  it,  ibid. 

a  firm  may  sue  upon  a  bill  endorsed  to  them  i7i  blank 
without  proving  a  joint  title,  131.  n.  140. 

aliter  in  an  action  on  a  bill  endorsed  specially  to  a  firm^ 
ibid. 

subsequently  admitted  partner  accepting  a  bill  for  a  pre- 
vious debt  is  liable  on  it,  193. 

where  one  partner  draws  bills  in  his  own  name  which  are 
discounted,  the  discounter  cannot  sue  the  firm,  although 
the  proceeds  are  applied  to  the  use  of  the  partnership, 
154. 

but  in  such  a  case  if  the  bill  be  drawn  by  one  partner,  with 
the  privity  of  the  other,  upon  the  firm,  though  the  bill 


442  INDEX. 

BILLS  OF  EXCHANGE,  kc.—conthiued. 

is  not  accepted,  the  partners  are  liable  for  the  money 
advanced,  ibid.  n. 

creditor  taking  separate  bills  of  one  partner,  when  a  dis- 
charge of  the  joint  liability,  156.  241 — 243. 

a  statement  by  three  partners  to  a  fourth  that  a  bill  had 
been  paid,  on  the  faith  of  which  the  accounts  after 
a  dissojution  were  settled,  when  no  discharge  of  the 
fourth,  157.  242. 

to  allege  that  a  bill  accepted  by  four  persons  was  accepted 
by  three,  or  that  a  bill  drawn  by  two  was  drawn  by  one, 
is  no  variance  in  pleading,  169. 

the  acceptance  of  a  bill  by  one  partner  in  the  joint  name, 
is  evidence  of  the  partnership  against  him,  192. 

but  it  does  not  prove  the  partnership  against  the  others, 
193. 

where  two  are  proved  to  be  partners,  an  acknowledge- 
ment by  one  that  a  bill  was  drawn  by  them,  is  evidence 
against  both,  194. 

the  admissions  of  the  acceptor  of  a  joint  bill  in  his  answer 
to  a  bill  in  equity  are  not  evidence  against  the  firm, 
ibid.  n. 

notice  of  the  dishonour  of  a  bill  when  not  necessary  to  be 
given  to  a  firm,  197. 

proof  of  acceptance  when  evidence  that  the  bill  was  regu- 
larly drawn,  ibid. 

the  joint  maker  of  a  note  is  competent  to  prove  the  de- 
fendant's signature,  200. 

one  partner  is  competent  to  prove  the  want  of  authority 
in  another  to  draw  a  bill  in  the  partnership  name,  201. 

notice  of  a  dissolution  to  the  endorsee  of  a  bill,  when  not 
effectual  without  notice  to  the  payee,  249. 

agreement  between  a  customer  and  a  firm  of  four  bankers 
that  the  former  should  pay  into  the  bank  endorsed 
bills,  and  should  take  in  return  the  banker's  promissory 
notes,  vests  in  the  bankers  the  property  in  all  bills  paid 
in  before  their  bankruptcy,  304. 

but,  under  such  an  agreement,  the  property  in  bills  paid 
in  after  the  bankruptcy  of  one  or  more  of  the  partners 
remains  in  the  customer,  ibid. 

where  bills  are  endorsed  to  a  creditor  by  partners  who 
have  committed  acts  of  bankruptcy,  nothing  passes  to 
the  creditor,  305. 

nor  in  such  a  case  would  any  thing  pass  by  the  endorse- 
ment of  the  solvent  partner,  307. 

the  estate   of  a  deceased  partner  is    not   liable  for  the 
amount  of  bills  fraudulently  sold  by  the  firm  after  his 
.  death,  362. 


INDEX.  443 

BOND. 

Bond  to  secure  money  lent  at  five  per  cent,  together  with 
a  portion  of  profits,  usurious,  when,  25,  26.  n. 
■^  not  so  if  the  lender  is  to  share  in  the  losses,  26,  27. 

to  a  sole  trader  for  the  fidelity  of  his  clerk  is  inop- 
erative after  the  obligee  enters  into  partnership, 
123. 
to  several  partners  for  the  same  purpose,  termi 
nates  on  the  death  or  retirement  of  one,  ibid. 

or  if  the  partnership  is  otherwise 

materially  altered,  124. 
may  be  so  framed  as  to  meet  any 
change  or  alteration  in  the  firm, 
ibid. 
the  obligee  of  a  joint  and  several  bond,  after  proving  the 
debt  under  a  commission  of  bankruptcy  against  one  of 
the  obligors,  cannot  bring  a  joint  action  against  both, 
328. 
when  equity  will  grant  relief  on  a  joint  bond  as  if  it  were 
joint  and  several,  368 — 371. 
BOTTOMRY. 

A  loan  of  money  on  bottomry  by  a  partnership  was  for- 
merly prohibited,  but  the  prohibition  is  now  relaxed,  29. 
BROKER. 

A  broker  purchasing  goods  for  a  merchant  on  an  agree- 
ment that,  in  lieu  of  brokerage,  he  should  have  a  por- 
tion of  the  profits  and  bear  a  portion  of  the  losses,  is  a 
partner  to  the  world  though  not  ititer  se,  14. 
so  a  broker  who  purchases  free  of  commission,  but  is  in- 
terested in  the  adventure,  is  a  partner,  15. 
a  broker  employed  to  sell  goods  on  an  agreement  that  he 
shall  have  all  he  can  procure  for  them  beyond  a  stated 
sum  is  not  a  partner,  19. 
a  third  person  who  is  entitled  to  half  the  commission  on 
effecting  policies  of  insurance  for  a  broker  is  not  a  part- 
ner with  him,  ibid. 
CERTIFICATE. 

One  partner  may  sign  a  bankrupt's  certificate  either  dur- 
ing the  partnership  or  after  the  dissolution,  68. 
in  an  action  against  a  firm,  a  partner  who  has  become  a 
bankrupt,  and  obtained  his  certificate,  must  be  joined 
175. 
a  partner  who  (has  obtained  his  certificate  under  a  joint 

commission  is  not  competent  to  support  it,  202, 
joint  creditors  are  not  entitled  to  an  account  of  the  pro- 
perty of  a  partnership  of  which  an  uncertificated  bank- 
rupt was  a  member  against  the  assignees  under  the  first 
commission,  261.  n. 

70  ' 


444  INDEX. 

CERTIFICATE— con/mwec?. 

where  a  certificate  has  been  granted  under  a  separate  com- 
mission, it  is  a  reason  why  it  should  not  be  superseded 
to  make  way  for  a  joint  commission,  265. 
but  it  is  notwithstanding  in  the  discretion  of  the  court  to 

supersede  it,  ibid.  n. 
where  there  has  been  delay  on  the  part  of  the  joint  cre- 
ditors, the  court  will  not  interfere,  ibid. 
but  it  will  where  there  has  been  fraud  on  the  part  of  the 

bankrupt,  ibid. 
separate  creditors  may  prove  their  debts  under  a  joint 
commission  for  the  purpose  of  assenting  to  or  dissent- 
ing from  the  certificate,  280. 
partner  in  a  banking  firm  who,  after  obtaining  his  certifi- 
cate, takes  up  the  notes  of  the  firm,  allowed  to  prove 
against  the  joint  estate,  292. 
what  is  not  such  a  compounding  with  creditors  as  will 

avoid  a  certificate,  295. 
where  a  commission  is  superseded  as  to  one  or  more  part- 
ners, a  certificate  subsequently  obtained  by  the  others 
is  not  thereby  affected,  ibid. 
a  joint  certificate  will  be  allowed  as  separate  after  the 

death  of  one  of  the  bankrupts,  ibid. 
joint  creditoi'S  may  prove  under  a  commission  against  one 
or  more  partners  of  a  firm  for  the  purpose  of  assenting 
to  or  dissenting  from  the  certificate,  310.  316. 
certificate  of  one  partner  will  discharge  him  from  a  cove- 
nant to  indemnify  the  other  partners  against  the  partner- 
ship debts,  324. 
certificate  under  a  joint  or  separate  commission  is  a  dis- 
charge of  every  debt,  330. 

of  a  bankrupt  partner  not  a  discharge 

of  his  copartner,  ibid. 
of  the  surviving  partner  does  not  re- 
lease the  estate  of  a  deceased  partner, 
331. 
of  bankrupt  partner  stayed  until   the 
partnership  accounts  could  be  taken, 
ibid. 
under  a  separate  commission  will  not 
be  stayed  because  a  joint  commission 
has  been  issued,  ibid. 
CHANGE  OF  FIRM. 

The  effect  which  a  change  of  firm  has  upon  guarantees  to 

the  house,  123—125. 
doubted  whether  a  mortgage  to  a  firm  is  available  to  a 
new  partnership  formed  by  the  addition  of  a  new  mem- 
ber, 125. 


INDEX. 


445 


CHANGE  OF  FIRM— conti?iued. 

an  agreement  by  way  of  deposit  of  title-deeds  as  a  security 

to  a  firm  may  be  extended  by  a  subsequent  agreement 

for  the  security  of  a  new  sum  on  a  change  of  partners, 

125. 

by  way  of  deposit  with  a  firm  of  five  extended  to  a  firm 

of  four,  ibid. 
what  is  notice  of  a  change  in  a  firm  of  bankers,  249. 
where  by  construction  of  a  written  agreement  it  can  be 
inferred  that  the  contract  made  with  one  firm  should  be 
continued  notwithstanding  a  change,  it  will  be  done,  304 
CHARTER. 

A  royal  charter  is  necessary  to  enable  a  company  to  hold 
lands,  3. 
CHOSES  IN  ACTION. 

Of  choses  in  action  on  the  death  of  one  partner,  358. 
COAL  MERCHANTS. 

A  partnership  consisting  of  more  than  five  coal  merchants 
is  illegal,  29. 
COMMISSION  OF  BANKRUPTCY. 

A  commission  purporting  to  issue  on  the  petition  of  one 
of  two  partners  is  invalid,  68. 

against  a  debtor  to  a  firm  on  the 
petition  of  the  solvent  partner 
is  regular,  ibid. 
secretary  of  a  company  who  may  sue  and  be  sued  for  the 

company  cannot  petition  for  a  commission,  133. 
a  partner  who  has  obtained  his  certificate  under  a  joint 

commission  is  not  competent  to  support  it,  202. 
of  a  joint  commission  against  partners,  256 — 297. 
of  the  trading,  257. 
of  the  acts  of  bankruptcy,  ibid. 
of  superseding  a  commission  against  one  part- 
ner who  has  not  committed  an  act  of  bank- 
ruptcy, or  against  whom  a  previous  commis- 
sion had  issued,  ibid.  258,  264.  n. 
of  the  petitioning  creditor's  debt,  260. 
joint  commission  may  issue  against  two  or  more  partners 

of  a  firm,  261. 
a  joint  and  a  separate  commission  against  the  same  party 

cannot  legally  subsist  at  the  same  time,  262. 
a  commission  against  a  member  or  members  of  a  firm  is- 
isued  after  a  prior  commission  against  two  or  more 
members  of  the  same  firm,  to  whom  to  be  directed  and 
how  to  be  proceeded  in,  263. 
it  is  no  ground  for  superseding  a  joint  commission  that 
there  is  a  prior  separate  commission  in  prosecution 
against  one  of  the  partners  in  Ireland,  263. 


446 


INDEX. 


COMMISSION  OF  BANKRUPTCY— cow^mwec?. 

the  lord  chancellor  will  supersede  or  remove  a  prior  com- 
mission, when,  263 — 266. 

where  it  is  for  the  benefit  of  the  bankrupt's  estate, 

264, 
where  it  is  the  least  extensive,  ibid. 

it  is  no  reason  against  superseding  a  separate  commission 
that  a  separate  creditor  will  be  deprived  of  his  right  of 
voting  in  the  choice  of  assignees,  ibid. 

when  a  separate  commission  will  or  will  not  be  superseded 
after  a  prosecution  has  been  instituted  against  the  bank- 
rupt for  not  surrendering,  ibid. 

a  separate  commission  will  not  be  superseded  where  there 
are  not  any  joint  effects,  or  the  joint  commission  cannot 
be  sustained,  265. 

nor  until  the  adjudication  of  bankruptcy  under  the  joint 
commission,  ibid. 

where  a  certificate  has  been  obtained,  or  sales  have  been 
made  under  the  first  commission,  it  will  not  be  super- 
seded, but  when  necessary  Avill  be  ordered  to  be  brought 
into  the  bankrupt  office,  ibid. 

what  arrangements  will  be  made  when  a  commission  is 
superseded,  ibid. 

a  joint  commission  does  not  abate  by  the  subsequent  death 
of  one  of  the  partners,  266. 

what  passes  by  the  assignment  under  a  joint  commission, 
266 — 280. 

how  the  joint  and  separate  creditors  shall  come  in  under  a 
joint  commission,  280. 

what  are  joint  and  what  separate  debts,  282 — 286. 

of  electing  between  the  joint  and  separate  estates,  286 — 
290. 

allowance  to  partners  under  a  joint  commission,  296. 

of  a  separate  commission  against  a  partner,  324 — 358. 
a  joint  debt  will  support  it,  298. 
when  one  partner  maj^  sustain  it  against  another, 

ibid. 
effect  of  it  upon  the  partnership,  ibid. 
what  passes  by  the  assignment  under  it,  299 — 304. 

under  a  separate  commission  the  whole  estate  is  adminis- 
tered where  the  solvent  partner  is  either  dead  or  abroad, 
309. 

proof  by  a  joint  creditor  of  a  joint  debt  under  a  separate 
commission  does  not  discharge  the  solvent  partner,  328. 

of  the  certificate  under  joint  or  separate  commissions,  330. 

of  set-off"  under  partnership  bankruptcies,  331 — 340. 

of  superseding  a  commission  against  partners,  346. 


INDEX.  447 

COMPANIES.    See  tit.  Crown,  and  Joint  Stock  Companies. 

CONSENT. 

The  consent  of  all  the  parties  is  necessary  to  the  formation 

of  a  partnership,  4. 
a  stranger  cannot  be  introduced  into  the  partnership  as  a 

partner  without  the  consent  of  all,  5. 
the  consent  of  all  the  partners  is  necessary  to  enable  a  firm 

to  engage  in  adventures  not  originally  contemplated,  6. 

CONSOLIDATION. 

When  a  consolidation  of  the  joint  and  separate  estates  will 
be  ordered  in  bankruptcy,  294. 

CONTRACT.     See  tit.  Illegal  Contracts. 

How  the  contract  of  partnership  is  formed,  3. 

where  the  same  person  is  a  partner  in  two  concerns  no 

legal  contract  can  arise  between  them,  SS.  118. 
a  partnership  contract  produces  only  a  joint  obligation  at 

law,  but  in  equity  the  obligation  is  joint  and  several, 

211.  359. 

CONTRIBUTION. 

In  what  cases  contribution  may  be  enforced  between  part- 
ners, 79—87. 

not  between  general  partners,  79. 

one  partner  in  a  particular  transaction  who  pays  a  joint 
debt  may  recover  contribution,  ibid. 

so  if  the  debt  and  damages  in  an  action  on  a  contract  be 
levied  against  him,  ibid. 

the  manager  of  a  company  may  enforce  contribution  from 
the  members,  when,  ibid. 

a  partner  paying  the  whole  of  a  sum  awarded  as  a  com- 
pensation for  a  breach  of  contract  may  enforce  contri- 
bution, ibid. 

to  entitle  a  partner  to  contribution  the  relation  of  partners 
must  exist  intet'  se,  80. 

the  manager  or  servant  of  a  partnership,  acting  as  a  part- 
ner, is  not  liable  to  contribute,  ibid. 

persons  agreeing  that  whatever  losses  may  be  sustained 
shall  be  borne  individually  are  not  bound  to  contribute, 
ibid.    . 

that  joint  funds  shall  alone  be  applica- 
to  losses,  are  not  responsible  indi- 
vidually, ibid. 

and  to  entitle  a  partner  to  contribution  in  respect  of  a 
debt  there  must  have  been  an  original  joint  legal  liabili- 
ty to  pay  it,  81. 
or  an  equitable  claim,  ibid. 
and  the  debt  must  have  been  actually  paid,  82. 


448 


INDEX. 


CONTIBUTION— con^mwec?. 

contribution  cannot  be  enforced  where  the  original  con- 
tract was  malum  in  se,  82. 
nor  where  the  claim  arose  out  of  a  prohibited  transaction, 

ibid. 
distinction  between  payments  made  in  the  course  of  legal 

and  illegal  contracts,  83. 
formerly  contribution  could  not  be  claimed  for  losses  upon 

marine  insurances,  85. 
there  can  be  no  claim  of  contribution  amongst  wrong- 
doers, 86.  185. 
unless  where  personal  default  is  not  attributable,  86. 
'  where  partners  must  join  or  sever  in  an  action  for  contri- 
bution, 87. 
a  bill  in  equity  will  lie  to  enforce  contribution,  106. 

when  it  is  the  preferable  remedy,  ibid. 
when  the  only  remedy,  107. 
where  both  the  joint  and  separate  estates  are  liable  for  a 
debt,  if  the  joint  estate  pay  more  than  its  proportion, 
the  separate  estate  will  in  bankruptcy  be  ordered  to 
contribute,  316. 
COVENANT. 

A  covenant  in  articles  of  partnership  that  no  partner  shall 
engage  in  the  same  business  on  his  own  account  is  per- 
mitted, 7. 
of  the  action  of  covenant  between  partners,  70. 
in  what  cases  it  lies,  70 — 12. 
to  recover  a  sum  agreed   to  be  advanced  as 

capital,  70. 
for  the  nonpayment  of  a  premium  for  being 

admitted  a  partner,  71. 
on  a  covenant  to  account  annually,  ibid. 

to  refer  disputes  does  not  lie,  72 . 
to  enforce  payment  of  a  stipulated  penalty, 
71,  72. 
the  effect  of  a  covenant  not  to  sue,  188. 

when  made  with  one  of  several  debtors,  ibid. 
when  with  a  single  debtor,  ibid. 
how  to  proceed  against  joint  debtors  when  such 
a  covenant  has  been  made  with  one  of  them, 
189. 
joint  covenant  when  considered  joint  and  several  in  equity, 
371. 
CREDITORS. 

On  what  principle  the  joint  creditors  are  first  paid  out  of 

the  joint  estate  after  a  dissolution,  235. 
joint  creditors  are  not  entitled  to  an  account  of  the  pro- 
perty of  a  partnership  of  which  an  uncertificated  bank- 


INDEX.  449 

CREDITORS— continued. 

rupt  was  a  member  agjjinst  the  assignees  under  the  first 
commission,  261.  n. 

separate  creditors  may  prove  their  debts  under  a  joint 
commission  for  the  purpose  of  assenting  to  or  dissenting 
from  the  certificate,  but  they  cannot  vote  in  the  choice 
of  assignees,  280. 

how  the  joint  and  separate  creditors  shall  come  in  under  a 
joint  commission,  281. 

where  a  joint  creditor  has  taken  a  separate  security,  282. 

joint  and  separate  creditors  must  elect  between  'the  joint 
and  separate  estates,  286 — 290.     See  tit.  Election. 

separate  creditors  of  one  partner  will  not  be  allowed  to 
prove  against  the  joint  estate  a  debt  due  from  the  part- 
nership to  that  partner,  290. 

unless'the  separate  effects  creating  the  debt  were  obtained 
by  actual  or  implied  fraud,  292. 

from  what  circumstances  fraud  will  be  inferred,  ibid. 

where  under  a  commission  against  a  dormant  and  an  os- 
tensible partner  the  joint  creditors  resort  to  the  separate 
estate  of  the  latter,  his  separate  creditors  have  a  lien 
upon  any  surplus  of  the  joint  estate  to  the  extent  which 
their  funds  have  been  diminished,  ibid. 

several  partners  having  distinct  firms,  dealing  together  as 
distinct  persons  in  the  articles  of  distinct  trades,  may 
prove  as  creditors,  ibid. 

but  a  debt  for  money  lent  by  a  minor  firm  to  the  aggre- 
gate firm  cannot  be  proved,  293. 

nor  can  a  debt  from  one  partner  to  the  other  where  the 
firm  consists  of  only  two  persons,  ibid. 

whether  a  partner  can  prove  a  debt  under  a  commission 
against  his  copartner,  quxre^  ibid.  n. 

where  the  concern  carried  on  by  one  partner  is  only  a 
branch  of  the  joint  concern,  proof  is  not  allowed,  ibid. 

when  creditors  are  entitled  to  interest,  2D4. 

a  joint  creditor  may  petition  for  a  separate  commission, 
298. 

joint  creditors  under  a  commission  against  one  or  more 
partners  may  prove  for  the  purpose  of  voting  for  as- 
signees, or  of  assenting  to  or  dissenting  from  the  certi- 
ficates, 310. 

joint  creditor  who  petitions  for  a  separate  commission  may 
receive  a  dividend  out  of  the  separate  sstate,  311. 

aliter  if  the  commission  be  a  joint  one,  ibid.  n. 

or  if  it  issue  against  two  or  more  partners  of  a  firm, 
312.  n. 

joint  creditors  are  not  entitled  to  a  dividend  out  of  the 


450 


INDEX. 


CREDITORS— con^mwed/. 

separate  estates  until  the  separate  creditors  are  satis- 
fied, 311—316. 
joint  creditors  may  prove  and  receive  a  dividend  if  they 

will  discharge  the  separate  debts,  315. 
in  what  cases  the  assignees  on  behalf  of  the  creditors  on 

the  joint  estate  may  prove  against  the  separate  estate, 

316 — 321. 
not  in  cases  of  contract,  or  where  the  firm  was  privy  and 

assented  to  the  creation  of  the  debt,  316 — 318. 
aliter  where  the  funds  creating  the  debt  have  been  taken 

by  the  single  partner  with  the  fraudulent  intention  of 

augmenting  his  separate  estate,  318 — 321. 
what  is  a  fraudulent  taking  within  the  meaning  of  the 

exception,  318. 
a  partner,  who  is  a  creditor  of  the  partnership,  cannot 

prove  in   competition  with  the  joint  creditors,  321. 

323. 
when  he  will  be  entitled  to  the  surplus  of  the  joint  estate 

in  preference  to  the  separate  creditors,  322. 
and  to  prove  against  the  separate  estate  for  any  deficiency, 

323. 
a  retired  partner,  who  permits  his  name  to  be  continued, 

not  entitled  to  prove,  unless  he  produces  a  discharge 

from  the  joint  creditors,  ibid. 
the  bankruptcy  and  certificate  of  the  continuiug  partner 

will  discharge  him  from  a  covenant  to  indemnify  the 

retiring  partner,  324. 
a  solvent  partner  may  prove  against  the  bankrupt  partner 

any  debt  due  to  him,  provided  he  pay  the  partnership 

debts,  or  indemnify  the  bankrupt's  estate  against  them, 

323. 
payments  by  a  solvent  partner,  after  the  bankruptcy  of  his 

copartner,  may  be  proved,  323 — 327. 
proof  by  a  joint  creditor  under  a  separate  commission  does 

not  discharge  the  solvent  partner,  328. 
under  a  decree  for  an  account  equitable  creditors  must  be 

satisfied,  357. 
creditors  in  partnership  in  respect  of  a  debt  due  from  one 

partner  have  a  right  in  equity  to  have  the  accounts 

taken,  ibid. 
joint  creditors  may  in  equity  proceed  against  the  assets  of 

a  deceased  partner,  359 — 366. 
but  they  are  entitled  only  to  the  surplus  of  the  separate 

estate  after  paying  the  separcte  creditors,  360. 
when  the  joint  creditors  of  the  surviving  partners  can 

compel  the  joint  creditors  of  the  firm  to  go  against  the 

assets  of  a  deceased  partner,  366. 


INDEX.  451 

CREDITORS— continued, 

when  the  creditors  may  resort  to  the  real  estate  of  a  de- 
ceased partner,  367. 

CROWN. 

The  king  may  constitute  companies  for  the  management  of 
trade,  3. 

may  erect  gildam  inercatoriam^  ibid. 
cannot  make  a  total  restraint  of  trade,  ibid. 

proceedings  against  partners  at  the  suit  of  the  crown,  214 — 
217. 

when  the  crown  is  entitled  to  all  the  partnership   pro- 
perty, 216. 
DEATH. 

After  the  death  of  one  partner  the  survivor  can  alone  sue 
on  a  joint  contract,  131. 

and  the  personal  representatives  ofdhe  last  survivor  after 
the  death  of  all  the  partners,  1 32. 

on  the  death  of  one  partner,  the  survivor  is  alone  respon- 
sible at  law,  172. 

so  the  personal  representative  of  the  last  survivor  is  alone 
responsible  after  the  death  of  all,  173. 
the  death  of  one  partner  is  a  dissolution  of  the  partner- 
ship, 219 — 221. 

although  the  number  of  partners  exceeds  two,  219. 

the  reason  why  it  operates  a  dissolution  stated,  219,  220. 

partners  may,  by  agreement,  secure  a  devolution  of  their 
interests  upon  others  after  their  deaths,  220. 

but  without  an  agreement  to  that  effect  neither  of  tliem 
can  nominate  a  person  to  continue  the  trade,  221. 

a  surviving  partner  claiming  a  benefit  under  the  will  of 
his  deceased  partner,  cannot  refuse  to  admit  a  legatee, 
ibid. 

agreement  that,  on  the  death  of  one  of  two  partners,  the 
business  shall  be  carried  on  by  his  representatives,  does 
not  extend  to  the  representatives  of  the  other,  ibid. 

a  partnership  for  term  of  years  is  dissolved  by  death,  z'izfi?. 

notice  of  the  death  of  a  partner  is  not  necessary  to  protect 
his  estate  from  future  liability,  248.  n.  362. 

a  joint  commission  of  bankruptcy  does  not  abate  by  the 
subsequent  death  of  one  of  the  partners,  266. 

a  joint  certificate  will  be  allowed  as  separate  after  the  death 
of  one  of  the  bankrupts,  295. 

the  consequences  of  the  dissolution  of  a  partnership  by 
death,  348 — 371. 

where  the  nominee  of  a  deceased  partner  refuses  to  succeed 
him  in  the  partnership,  the  death  ends  the  concern,  221. 
350. 

71 


452 


INDEX 


DEATH — continued. 

in  what  sense  the  partnership  continues  after  the  death  of 
a  partner,  351. 

the  assets  of  a  deceased  partner  are  liable  in  equity  to  pay 
the  partnership  debts,  359 — 366. 

but  not  such  claims  as  were  not  consummate  before  his 
death,  361. 

real  estates  of  a  deceased  partner  when  liable,  367. 
DEBTS. 

on  what  principle  the  joint  debts  are  to  be  first  paid  out  of 
the  joint  estate  after  a  dissolution,  235. 

deed  of  conveyance  by  one  partner  of  real  property  in 
trust  to  pay,  first,  any  debt  that  might  be  owing  by  him 
to  the  firm;  secondly,  his  proportion  of  the  partnership 
debts;  and  thirdly,  certain  scheduled  debts,  how  con- 
strued in  equity,  253. 

separate  debts  are  proveable  under  a  joint  commission, 
262.  282. 

and  debts  from  inferior  partnerships,  ibid. 

what  are  joint  and  what  separate  debts,  282 — 286. 

money  borrowed  by  one  partner  to  pay  for  an  estate,  but 
applied  to  pay  partnership  debts,  cannot  be  proved 
against  the  joint  estate,  283. 

loan  of  money  to  one  partner  and  a  subsequent  loan  of 
'  it  by  him  to  the  firm,  does  not  create  a  debt  as  between 
the  original  lender  and  the  firm,  ibid. 

the  application  to  partnership  purposes  of  money  borrowed 
by  one  partner  is  evidence  of  a  joint  debt,  284. 

payment  of  interest  by  a  firm  on  a  debt  originally  sepa- 
rate, when  it  will  make  it  joint,  ibid. 

of  the  debts  of  an  old  firm  acknowledged  as  the  debts  of 
of  new  firm,  ibid. 

when  it  must  be  shown  that  the  creditors  acceded  to  the 
arrangement,  ibid. 

when  the  misapplication  of  trust-money  by  one  partner, 
who  is  a  trustee,  creates  or  does  not  create  a  joint  debt, 
285. 

proof  of  debts  against  the  joint  or  separate  estate  by  a  joint 
and  separate  creditor,  286 — 290. 

where  there  is  a  contract  for  double  securities  against  dis- 
tinct firms,  289. 
separate  creditors  of  one  partner  will  not  be  allowed  to 
prove  against  the  joint  estate  a  debt  due  from  the  part- 
nership to  that  partner,  290. 

unless  the  separate  effects  creating  the  debt  were  obtained 
by  actual  or  implied  fraud,  292. 

from  what  circumstances  fraud  will  be  inferred,  ibid. 

several  partners  having  distinct  firms  dealing  together  as 


INDEX.  453 

DEBTS— conti7iued. 

distinct  persons  in  the  articles  of  distinct  trades  may 
prove  their  debts  as  creditors,  292. 

but  a  debt  for  money  lent  by  a  minor  firm  to  the  aggre- 
gate firm  cannot  be  proved,  293. 

nor  can  a  debt  from  one  partner  to  the  other  where  the 
firm  consists  of  only  two  persons,  ibid. 

where  the  concern  carried  on  by  one  partner  is  only  a 
branch  of  the  joint  concern,  proof  is  not  allowed,  ibid. 

whether  a  partner  can  prove  a  debt  under  a  commission 
againt  his  copartner,  gusere,  ibid.  n. 

when  interest  is  allowed  on  debts,  294. 

a  joint  debt  will  support  a  separate  commission,  298. 

joint  debts  may  be  proved  under  a  separate  commission, 
or  under  a  commission  against  two  or  more  partners  for 
the  purpose  of  voting  for  assignees,  or  of  assenting  to  or 
dissenting  from  the  certificate,  310. 

but  not  for  the  purpose  of  receiving  a  dividend  out  of  the 
separate  estates,  311 — 316. 

in  what  cases  the  assignees  in  respect  of  the  joint  estate 
may  prove  against  the  separate  estate,  316 — 321. 

not  in  cases  of  contract  or  where  the  firm  was  privy  and 
assented  to  the  creation  of  the  debt,  316 — 318. 

aliter  where  the  funds  creating  the  debt  have  been  taken 
by  the  single  partner  with  the  fraudulent  intention  of 
augmenting  his  separate  estate,  318 — 321. 

what  is  a  fraudulent  taking  within  the  meaning  of  the  ex- 
ception, 318. 

of  the  proof  of  a  debt  by  a  partner,  who  is  a  creditor  of 
the  partnership,  against  the  surplus  of  the  joint  estate, 
and  against  the  separate  estate  for  any  deficiency,  321. 
323. 

a  solvent  partner  may  prove  against  the  bankrupt  partner 
any  debt  due  to  him,  provided  he  pay  the  partnership 
debts,  or  indemnify  the  bankrupt's  estate  against  them, 
323. 

a  partner  retiring  under  a  covenant  of  indemnity  may 
prove  outstanding  debts  paid  by  him  under  a  commis- 
sion against  the  continuing  partner,  324. 

but  the  bankruptcy  and  certificate  of  the  continuing  part- 
ner will  discharge  him  from  such  a  -covenant,  ibid. 

payments  by  a  solvent  partner,  after  the  bankruptcy  of  his 
copartner,  may  be  proved,  321 — 327. 

proof  by  a  joint  creditor  of  a  joint  debt  under  a  separate 
commission  does  not  discharge  the  solvent  partner,  328. 

of  set-ofi"  under  partnership  bankruptcies,  331 — 340. 

when  payments  made  by  surviving  partners  will  be  ap- 
plied in  discharge  of  a  debt  due  from  the  partnership 
at  the  time  of  the  death  of  a  partner,  364. 


454 


INDEX. 


DECLARATIONS. 

The  declaration  of  one  partner  that  the  subject  matter  of 
an  action  belonged  to  himself  is  evidence  against  the 
firm,  65.  141. 
the  declaration  of  a  person  that  he  is  a  partner  is  binding 
upon  himself,  when,  192. 

of  one  partner  is  not  evidence  to  prove  the 
partnership  against  the  others,  193. 

is  evidence  against  the  firm 
after  the  fact  of  partner- 
ship is  established,  1 94. 
although  the  partner  making 
the   declaration  is  not  a 
party  to  the  suit,  195. 
after  a  dissolution,  when  evi- 
dence  against   the   firm, 
196,197. 
during  a  subsisting  partner- 
ship as  to  a  transaction 
which  took  place  previous 
to   it,  when  binding  on 
others,  197. 
when  the  declarations  of  partners  after  a  dissolution  are 
evidence  against  them,  ibid. 
DEED. 

One  partner  cannot  bind  another  by  deed,  58. 

although  the  partnership  is  constituted  by  deed, 

ibid. 
unless  an  express  power  be  reserved,  ibid. 
a  deed  executed  by  one  partner  in  the  presence  and  by  the 

authority  of  the  other  partners  binds  all,  59. 
and  it  does  not  require  a  delivery  by  each  partner,  ibid. 
a  warrant  of  attorney  executed  by  one  with  the  consent 
but  in  the  absence  of  the  other  partner  is  sufficient,  ibid. 
in  what  case  an  express  authority  to  execute  a  deed  must 

be  shown,  ibid. 
a  deed  executed  by  one  partner  on  the  behalf  of  the  firm 

binds  himself,  ibid. 
unless  it  was  executed  by  him  on  the  faith  of  its  execution 

by  the  others,  60. 
one  partner  may  bind  tmother  by  deed  in  bankruptcy,  ibid. 
See  tit.  Bankruptcy. 

and  by  a  release  under  seal,  ibid.  See 
tit.  Release. 
deed  of  conveyance  by  one  partner  of  real  property  in 
trust  to  pay,  first,  any  debt  that  might  be  owing  by  him 
to  the  firm;  secondly,  his  proportion  of  the  partnership 
debts;  and,  thirdly,  certain  scheduled  debts,  how  con- 
strued in  equity,  253. 


INDEX.  455 

DISCLAIMER. 

A  disclaimer  by  a  partner  of  any  beneficial  interest  is  no 
reason  why  he  should  be  discontinued  a  party  to  a  suit 
in  equity,  if  the  relief  prayed  applies  to  any  period 
when  he  was  a  partner,  100.  n. 
when  a  disclaimer  of  the  partnership  will  absolve  a  part- 
ner from  liability,  149. 
DISCOVERY. 

When  a  bill  for  a  discovery  lies  between  partners  and 
what  may  be  pleaded  to  it,  93 — 105. 
DISSOLUTION. 

Where  goods  are  ordered  by  two  partners  previously  to 
a  dissolution,  but  are  delivered  afterwards  to  one  of 
them,  he  is  alone  liable  for  their  price,  149. 
when  the  acts  or  declarations  of  a  partner  made  after  a 
dissolution  are  evidence  against  the  firm,  64,  196,  197. 
the  responsibility  of  partners  may  be  removed  by  evi- 
dence of  a  dissolution,  198. 
how  such  evidence  may  be  rebutted,  ibid. 
partnership  for  a  single  dealing  when  terminated,  218. 

for  a  definite  term  dissolved  by  death,  2 1 9 — 
.       221. 

by  confirmed  in- 
sanity, 221. 
by   bankruptcy, 
218.227—229. 
by   effluxion    of 
time,  226. 
for  an  indefinite  term  dissolved  at  pleasure, 

223 — 226. 
existence  of  engagements  with  third  persons 
no  objection  to  a  dissolution,  224. 
In  what  cases  a  court  of  equity  will  interfere  when  the 
dissolution  of  a  partnership  is  opposed,  225. 

inhibit  the  dissolution 
of  a  partnership,  ibid. 
a  partnership  is  dissolved  by  the  marriage  of  a  /erne  sole 
partner,  226. 

by  the  decree  of  a  court  of  equi- 
ty, when,  226,  227. 
by  an  execution,  229. 
may  be  dissolved  by  an  award,  ibid. 
the  consequences  of  a  dissolution,  230 — 256. 
partnership  continues  notwithstanding  a  dissolution,  until 

the  joint  affairs  are  arranged,  231. 
in  what  cases  a  receiver  will  be  appointed,  ibid. 

not  on  the  ground  merely  of  a  previous  dissolu- 
tion, ib. 


456 


INDEX. 


DISSOLUTION— cow^mi^eJ. 

on  a  dissolution,  either  partner  may  insist  on  a  sale  of  the 

partnership  effects,  234. 
the  consequences  of  a  dissolution  to  the  retiring  partner, 
236—252. 

"  to  the  remaining  part- 
ner, 252 — 256. 
notice  of  the  dissolution  of  a  partnership  how  to  be  given, 

248—251. 
the  consequences  of  a  dissolution  by  bankruptcy,  256 — 
347. 

by  death,  348—371. 
DISTRINGAS. 

Partnership  property  may  be   taken  under  'a  distringas 
against  two  out  of  three  partners  for  the  purpose  of 
compelling  the  appearance  of  the  former,  164. 
but  the  separate  property  of  the  partner  who  appears  can- 
not be  distrained,  ibid. 
DIVIDEND. 

Joint  and  several  creditor  need  not  elect  until  the  as- 
signees are  possessed  of  a  fund  to  make  a  dividend,  287. 
not  allowed  to  change  his  proof 
if  he  disturb  a  dividend,  288. 
who  has  proved  against  one  es- 
tate not  allowed  to  vary  his 
proof,  unless  he  signify  his 
election  of  abandoning  it  be- 
fore a  dividend  is  declared, 
ibid. 
joint  creditor  who  petitions  for  a  separate  commission, 

entitled  to  a  dividend  out  of  the  separate  estate,  311. 
aliter  if  the  commission  be  a  joint  one,  ibid.  n. 
or  if  it  issue  against  two  or  more  partners  of  a  firm,  312.  n. 
joint  creditors  are  not  entitled  to  a  dividend  out  of  the 
separate  estates,  until  the  separate  creditors  are  satisfied, 
313. 
•  unless  they  will  discharge  the  separate  debts,  315. 
DORMANT  PARTNER. 

Who  is  a  dormant  partner,  13. 

in  what  case  executors  are  chargeable  as  dormant  part- 
ners, 16. 
a  dormant  partner  is  not  responsible  on  an  engagement, 
not  on  tlie  joint  account,  where  he  was  not  known  to 
be  a  member  of  the  firm,  42.  163. 
a  dormant  partner  may,  but  need  not  be  joined  in  an  ac- 
tion by  the  firm,  128. 
that  the  defendant's  right  of  set-off  may  be  affected  is  no 
objection  at  the  trial  to  his  being  joined,  ibid. 


INDEX.  457 

DORMANT  FARTHER— continued. 

in  such  a  case  an  application  to  the  court  should  be  made 

by  the  defendant  for  relief,  128. 
when  a  dormant  partner  is  competent  to  prove  a  contract 

made  with  the  firm,  141. 
a  dormant  partner  is  not  within  the  statute  of  apprentice- 
ship, 158. 

^liable  to  third  persons  when  disco- 
vered, 162. 
notwithstanding  a  private  stipulation 

to  the  contrary,  ibid. 
his  liability  not  discharged  by  those 
acts  of  a  creditor  which   would 
exonerate  the  ostensible  partner, 
ibid. 
when  a  plea  in  abatement  that  there  is  a  dormant  partner 

not  joined  as  a  defendant  is  sustainable,  178,  179. 
a  dormant  partner  need  not  give  notice  of  a  dissolution 
unless  the  existence  of  the  partnership  is  known,  251. 
when  he  need  not  be  included  in  a  joint  commission  of 

bankruptcy  against  the  firm,  261, 
the  ostensible  partner  is  reputed  owner  of  the  dormant 

partner's  share  in  the  joint  efiects,  278.  280.  301. 
where  under  a  commission  against  a  dormant  and  an  os- 
tensible partner  the  joint  creditors  resort  to  the  separate 
estate  of  the  latter,  his  separate  creditors  have  a  lien 
upon  any  surplus  of  the  joint  estate  to  the  extent  which 
their  funds  have  been  diminished,  292. 
EFFLUXION  OF  TIME.     See  tit.  Dissolution. 
EJECTMENT. 

A  notice  to  quit  signed  by  one  partner  in  the  names  of  all, 

when  sufficient,  66.  n. 
when  an  ejectment  for  the  partnership  premises  is  main- 
tainable by  one  partner  against  another  after  a  dissolution 
without  a  notice  to  quit,  92. 
where  A.  demised,  but  gave  receipts  for  the  rent  in  his 
own  name  and  those  of  his  partners,  he  may  neverthe- 
less recover  in  ejectment  on  a  demise  stated  to  have 
been  made  by  himself,  130. 
ELECTION. 

A  joint  and  several  creditor  must  elect  whether  he  will 

prove  against  the  joint  or  the  separate  estate,  286. 
but  he  may  come  in  on  the  surplus  of  the  other,  if  there 
should  be  any,  ibid. 
^  this  doctrine  disapproved  of,  ibid. 

to  entitle  a  creditor  to  elect  he  must  have  both  a  joint  and 

a  separate  claim,  287. 
when  his  election  must  be  made,  ibid. 


458 


INDEX. 


EhECTlOlSi— continued. 

when  a  creditor  is  or  is  not  allowed  to  withdraw  his  proof 

against  one  estate  and  prove  against  the  other,  287. 
when  the  rule  of  election  does  not  apply  where  there  are 

several  firms  composed  of  the  same  persons,  289. 
proving  or  claiming  a  debt  under  a  commission  against 
one  partner  is  an  election  as  to  him,  but  it  does  not  ope- 
rate as  a  relinquishment  of  an  action  previously  brought 
against  the  other  partners,  328. 
so  proof  of  a  debt  against  one  partner  is  not  an  election  so 

as  to  prevent  the  creditor  from  suing  the  others,  ibid. 
obligee  of  a  joint  and  several  bond  by  proving  the  debt 
against  one  of  the  obligors  elects  to  proceed  severally 
and  cannot  afterwards  bring  a  joint  action  against  both, 
ibid. 
creditor  having  distinct  demands  cannot  it  has  been  held 
proceed  at  law  for  one,  and  afterwards  prove  for  the 
other,  ibid. 
as  where  a  partner  brings  an  action  against  his  copartner 
for  one  debt,  and  afterwards  has  a  claim  entered  under 
a  commission  against  him  for  a  different  debt,  the  claim 
is  an  election  as  to  both  debts,  ibid. 
but  it  has  been  determined  since,  that  to  constitute  distinct 
debts  it  is  not  necessary  they  should  be  of  distinct  na- 
tures, but  only  that  they  should  arise  on  distinct  con- 
tracts, and  that  the  effect  of  proof  is  only  an  election  as 
to  the  particular  debt  proved,  329. 
creditor  may  prove  for  one  debt  and  afterwards  bring  an 

action  for  a  distinct  one,  ibid. 
the  personal  representative  or  other  nominee  of  a  deceas- 
ed partner  is  not  entitled  to  have  the  accounts  taken  be- 
fore electing  to  become  a  partner,  350. 
a  person  who,  on  the  death  of  a  partner  becomes  entitled 
to  his  share,  may,  if  it  be  continued  in  the  trade,  elect 
to  take  either  interest  or  the  profits  that  have  arisen 
from  it,  355. 
EQUITY. 

A  court  of  equity  will  not  permit  one  partner  to  engage  in 
a  concern  directly  adverse  to  the  joint  undertaking,  7. 
partners  are  tenants  in  common  in  equity  of  real  proper- 
ty, 32. 
where  a  deceased  partner  contracted  for  a  lease  of  partner- 
ship premises,  there  is  no  equity  against  the  landlord  to 
restrain  him  from  granting  it,  but  the  representatives 
will  be  restrained  from  disposing  of  it,  when  granted, 
except  for  joint  purposes,  34.  n.  349. 
equitable  remedies  between  partners,  93 — 115. 
bill  for  an  account,  93. 


INDEX.  459 

EQTJITY— continued. 

will  not  lie  if  the  partnership  is  illegal,  94. 

aliter  as  to  the  legal  trade,  if  partners  embark  in  two 

trades,  the  one  legal  and  the  other  illegal,  ibid. 
and,  after  the  death  of  a  partner,  his  executor  cannot 
refuse  on  account  of  profits  made  in  an  illegal  part- 
nership, ibid. 
may  be  sustained  against  a  corporation  in  the  nature  of 
a  partnership,  ibid.  213. 

notwithstanding  a  dissolution  is  not 
prayed,  95. 
when  a  dissolution  must  be  prayed, 
ibid. 
it  is  a  general  rule  that  to  a  bill  in  equity  all  the  partners 

must  be  made  parties,  ibid. 
what  are  the  consequences  if  they  are  not,  96. 
where  one  partner  assigns  a  moiety  of  his  share,  an  ac- 
count may  be  directed  between  him  and  the  assignee, 
without  making  other  partners  parties,  ibid. 
in  what  cases  the  general  rule  is  relaxed,  ibid. 

where  the  parties  are  numerous,  ibid.  143, 

212. 
where  the  partnership  is  a  bubble,  96. 
doubtful  whether  it  will  be  relaxed  in  the 
case  of  legal  societies,  97 — 99. 
pleas  to  bill  for  an  account,  99. 

that  the  defendant  is  not  a  partner,  ibid. 
^  when  it  must  be  accompanied  by  an  answer, 

100. 
of  a  stated  account,  ibid. 

when  a  bar  and  what  it  must  disclose,  100 
— 102. 
stated  account  when  opened  on  the  ground  of 
fraud,  101. 

what  is  a  stated  account,  102. 
plea  of  the  statute  of  limitations  when  sustainable,  102. 
an  agreement  to  refer  the  matter  in  dispute  not  good 
103. 

when  it  may  be  urged  as  an  objection 
to  the  summary  interference  of  the 
court,  104. 
in  what  manner  the  account  is  taken,  105. 

where  the  articles  contain  clauses  prescribing  the 

mode,  ibid. 
where  those  clauses  have  not  been  acted  upon,  ibid. 
what  allowances  are  made,  ibid. 
when  interest  is  chargeable  on  money  borrowed, 
106. 

72 


460  INDEX. 

EQUITY — continued. 

partner  not  obliged  to  bring  money  into  court,  when,  106. 

when  he  will  be  compelled,  ibid. 
a  court  of  equity  will  enforce  contribution,  ibid. 

in  what  case  the  only  remedy  is  in  equity,  107. 
equity  will  interfere  in  cases  of  fraud,  ibid. 

where  a  premium  for  entering  into  a  part- 
nership has  been  fraudulently  obtained, 
ibid.  302. 
where   an    understanding  between    the 

partners  has  been  violated,  107. 
where  one  partner  deals  with  the  joint 
employers  on  his  own  account  exclu- 
sively, 108. 
where  one  partner  pledges  the  firm  in  an 
individual  transaction,  ibid. 
will  restrain  a  partner  from  negotiating  bills  on  his 
private  account,  z'^zW, 

a  third  person  from  negotiating  bills  he 
may  have  taken  from  one  partner  in 
fraud  of  the  others,  ibid. 
a  partner  from  usingthe partnership  name 
and  receiving  the  joint  debts,  although 
the  partnership  may  be  dissolved  by 
the  parties,  ibid. 
a  partner,  who  has  been  guilty  of  a  breach  of  good  faith, 

will  not  be  relieved  by  injunction,  109. 
will  not  restrain   the  surviving  partners  from  using  the 

name  of  the  deceased  in  their  trade,  ibid.  221.  356. 
a  party  paying  a  deposit  on  a  scheme  which  is  a  bubble 

may  recover  it  back  in  equity,  ibid. 
equity  will  decree  a  specific  performance  of  an  agreement 
to  enter  into  a  partnership,  ibid. 

not  if  the  partnership  may  be  immedi- 
ately after  dissolved,  110. 
on  decreeing  performance  will  not  direct 
an  account  of  previous  profits,  ibid. 
will  interfere  on  breach  of  covenants  in  articles, 
when;  111—113. 

generally  not,  unless  there  is  ground 

for  dissolving  the  partnership,  111. 

in  what  cases  where  a  dissolution  is  not  sought, 

112. 
not  where  the  case  made  is  only  a  temptation 
to   the  abuse   of   the  partnership  property, 
113. 
will  not  allow  one  partner  to  place  himself  in  a  situa- 


INDEX.  461 

EQUITY — continued. 

tion  which  gives  him  a  bias  against  the  due  discharge 
of  his  duty,  113. 
the  existence  of  the  partnership  must  be  apparent,  or 
■^  the  court  will  not  interpose,  ibid. 

in  what  cases  a  receiver  will  be  appointed,  114.      See 

tit.  Receiver. 
a  contract  or  a  security  entered  into  or  given  by  one 
firm  to  another,  of  both  of  which  the  same  person  is 
a  comman  member,  may  be  enforced  as  an  equitable 
agreement,  when,  119. 
equitable  remedies  for  partners  against  strangers,  142 — 
144. 

parties  necessary  to  a  bill,  142. 
where  a  necessary  party  is  out  of  the  juris- 
diction of  the  court,  143. 
exception  to  the  general  rule,  ibid. 
when  a  joint  stock  company  may  file  a  bill  in 
the  name  of  their  sccretaryj  ibid.  n. 
bill  will  lie  by  a  solvent  partner  to  be  quieted  in  the 
possession   of    the   partnership    effects   when    they 
have  been  taken  in  execution  b}^  a  separate  creditor, 
144. 
when  an  injunction  to  stay  execution  against  a  partner- 
ship will  be  refused  after  a  judgment  at  law,  ibid. 
release  to  one  partner  discharges  all  in  equity,  187, 
will  relieve  against  an  execution,  207. 
equitable  remedies  against  partners,  211 — 213. 
partnership  contract  joint  and  several  in  equity,  212. 
all  the  partners  must  be  made  parties  to  a  suit,  ibid. 
unless  where  some  are  out  of  the  jurisdiction  of  the 

court,  ibid. 
service  of  subpoena  on  one  partner  when  good  service 

on  the  other,  213. 
the  equitable  jurisdiction   by   injunction  is  exercised 
with  caution  when  it  will  have  the  effect  of  stoppino- 
a  large  trading  concern,  ibid. 
a  ^partnership  will  be  dissolved    by  the   decree  of  a 
court  of  equity  on  the  misconduct  of  partners,  218, 
227. 
in  what  cases  equity  will  interfere  when  the  dissolution 
of  a  partnership  is  opposed,  225. 

inhibit  the  dissolution   of  a 
partnership,  ibid. 
court  of  equity  will  appoint  a  receiver  after  a  dissolu- 
tion, when,  231. 

on  a  dissolution  directs  the  joint  effects  to 
be  sold,  234. 


462  INDEX. 

BQVITY— continued. 

will  order  a  sale  on  motion,  when,  235. 
will  not  entertain  a  suit  upon    the    mere 
speculation  of  possible  injury,  239. 
deed  of  conveyance  by  one  partner  of  real  property  in 
trust  to  pay,  first,  any  debt  that  may  be  owing  by 
him  to  the  firm,  secondly,  his  proportion  of  the  part- 
nership debts,  and,  thirdly,  certain  scheduled  debts, 
how  construed  in  equity,  253. 
will  enforce  an  agreement  made  on  a   dissolution  that 
a  particular  book  should  belong  to  one  partner,  and 
that  a  copy  of  it  should  be  delivered  to  the  other, 
255. 
in  what  cases  equity  will  allow  a  set-off  where  there 

would  be  none  at  law,  336 — 340. 
under  a  decree  for  an  account  equitable  creditors  niust 

be  satisfied,  357. 
ci'editors  in  partnership  in  respect  of  a  debt  due  from 
one  partner  have  a  right  in  equity  to  have  the  ac- 
counts taken,  ibid. 
where  a  partner,  who  has  covenanted  to  indemnify  his 
copartner  against  the  joint  debts,  dies,  equity  will 
apply  his  assets  in  discharge  of  those  debts,  ibid. 
of  the  liability  of  the  assets  of  a  deceased  partner  in 

equity,  359 — 366. 
what  sort  of  dealing  with  the  surviving  operates  a  dis- 
charge of  the  deceased  partner,  362—365. 
eight  months  non-claim  on  the  survivor,  and  an  inter- 
mediate payment  by  him  of  part,  is  no  discharge  of 
the  equity  of  the  creditor  against  the  deceased,  366. 
when  equity  will  grant  relief  on  a  joint  bond,  as  if  it 
were  joint  and  several,  368 — 371. 
EVIDENCE.     See  tit.    Abatement,  Admissions,  Declara- 
tions, Limitations,  Statute  of,  and  Witness. 

Notice  by  one  partner  that  the  partnership  has  been  dis- 
solved, to  what  extent  evidence  against  him,  92. 
where  the  partnership  is  contested  inter  se,  what  evidence 

is  sufficient  to  establish  it,  ibid. 
what  is  evidence  of  an  adjustment  between  partners  in  a 

particular  adventure,  ibid. 
of  the  evidence  in  actions  by  partners  against  strangers, 

139.  142. 
when  the  partnership  need  not  be  proved,  139. 
when  it  must  be  proved,  ibid. 
how  it  is  proved,  140. 

not  necessary  to  produce  the  deed  of  copartnership,  ibid. 
names  of  partners  may  be  suggested  to  witness,  when, 
ibid. 


INDEX.  463 

EVIDENCE— co;^^^■«^«ec?.  ^,     ^ 

in  an  action  on  a  bill  indorsed  to  a  firm  in  blank,  not  ne- 
cessary to  prove  a  joint  title,  131.  n.  140. 
aliter  in  an  action  on  a  bill  indorsed  sjiecially  to  a  firm, 

or  in  an  action  on  a  bill  indorsed  in  blank  to  a  particular 
house  where  the  action  is  brought  by  the  members  of 
that  house  and  additional  parties,  140. 

in  what  cases  partners  may  be  witnesses  for   the  firm, 

what  evidence  is  sufficient  to  sustain  a  replication  of  a 
subsequent  demand  and  a  refusal  to  a  plea  of  tender  by 
partners,  1S9. 

of  the  evidence  in  actions  against  partners,  190.  202. 

slighter  evidence  is  sufficient  to  establish  the  partnership 
than  where  partners  are  plaintiff's,  190. 

sufficient  to  show  that  the  defendants  have  acted  as  part- 
ners,   191.  J      -T.-^ 

although  the  partnership  is  constituted  by  deed,  ibid. 
witness  may  be  asked  whether  one  has  interfered  in  the 

business  "of  the  other,  e6iV/. 
verdict  on  issue,  evidence  of  partnership,  when,  ihid. 
release  executed  by  defendants,  evidence  of  partnership, 

when,  192. 
declaration  or  admission  of  a  party  that  he  is  a  partner 

evidence  against  him  to  prove  it,  ibid. 
acceptance  by  a  partner  of  a  bill  in  the  joint  name,  evi- 
dence against  him  of  partnership,  ibid. 
entry  at  the  excise  office,  when  evidence  of  partnership 

against  the  party  making  it,  ibid. 
letter  of  one  partner  admitting  the  partnership,  when  evi- 
dence of  it,  ibid. 
subsequent  acts  and  admissions  of   a  party  evidence  to 

charge  him  as  a  partner,  193. 
aliter,  if  it  appear  he  was  not  a  partner  at  the  time  of  the 

contract,  ibid, 
act  or  declaration  of  one  partner  not  evidence  of  partner- 
ship against  the  others,  ibid. 
nor  are  the  acts  of  third  persons  evidence  to  charge  par- 
ties as  partners,  without  showing  that  they  were  autho- 
rised or  adopted,  ibid. 
when  the  fact  of  partnership  is  established,  the  act  or  de- 
claration of  one  partner  is  binding  upon  all,  63.  194. 
although  made  by  a  partner  who  is  no  party  to  the  suit, 

195. 
or  although  made  after  a  dissolution,  if  it  relate  to  a  joint 
transaction,  64.  196. 


464 


INDEX. 


EVIDENCE— con^mwec?. 

aliter  as  to  a  transaction  which  has  occurred  since  the 

dissolution,  65.  197. 
admission  of  a  partner  as  to  a  transaction  which  occurred 

previous  to  the  partnership,  when  binding,  ibid. 
notice  of  the  dishonour  of  a  bill,  when  not  necessary  to  be 

given  to  a  firm,  197. 
proof  of  acceptance,  when  evidence  that  a  bill  was  regu- 
larly drawn,  ibid. 
responsibility  of  partners  removed,  by  what  evidence,  198. 

by  proof  of  notice  that 
they  would  not  be 
answerable,  ibid. 
by  proof  of  a  dissolu- 
tion, ibid. 
how  such  evidence  may 
be  rebutted,  ibid. 
in  what  cases  a  partner  may  be  a  witness  either  for  or 

against  his  copartners,  198.  202. 
the  application  to  partnership  purposes  of  money  borrow- 
ed by  one  partner  is  evidence  that  the  debt  is  joint,  284. 
EXECUTION. 

Bill  in  equity  will  lie  by  the  solvent  partner  to  be  quieted 

in  the  possession  of  the  partnership  effects,  when  they 

have  been  taken  in  execution  by  a  separate  creditor, 

144. 

when  an  injunction  to  stay  execution  against  a  partnership 

will  be  refused,  after  a  judgment  at  law,  ibid. 
execution  against  a  firm,  how  to  be  enforced,  and  what 
may  be  taken  under  it,  203. 

against  a  single  partner,  what  may  be  taken 
under  it,  203.  207. 

how  to  be  enforced  against 

the  joint  estate,  204. 
equity  will  relieve  against 

it,  207. 
court  of  law  cannot  inter- 
fere  for   that   purpose, 
206. 
writ  of  execution  must  correspond  with  the  judgment,  208. 
where  some  of  the  partners  are  dead,  209. 
how  it  may  be  executed,  ibid. 
what  is  satisfaction  under,  ibid. 

payment  by  one  partner,  ibid. 
recovery  against  the  sheriflf  for  the 

escape  of  one,  ibid. 
discharge  of  one  by  the   plaintiff, 
ibid. 


INDEX.  465 

EXECUTION— cow/m  wee?. 

what  is  not  satisfaction  under,  210. 

discharo-e  of  one  under  the  insol- 
vent act,  ibid. 
escape  of  one,  ibid. 
death  of  one  whilst  in   execution, 

ibid. 
caption  of  one  under  a  ca.  sa.  ibid. 
what  is  the  measure  of  damages  in  an  action  against  a 
sheriff  for  not  selling  under  a  writ  of  execution  against 
one  partner,  211. 
a  partnership  is  dissolved  by  an  execution,  229. 
au  execution  against  partnership  effects  cannot  be  sustain- 
ed where  it  is  overreached  by  an  act  of  bankruptcy, 
308. 
EXECUTORS  AND  ADMINISTRATORS. 

Executors  or  administrators  are  not,  in  their  representa- 
tive capacity,  partners  with  the  survivors,  4. 
when  they  are  personally  liable  as  partners,  16. 
where  a  deceased  partner  contracted  for  a  lease  of  partner- 
ship premises,  a  court  of  equity  will  restrain  his  repre- 
sentatives from  disposing  of  it,  when  granted,  except 
for  joint  purposes,  34.  n.  349. 
cannot,  as  against  creditors  and  legatees,  refuse  an  account 
of  profits  made  by  their  testator  or  intestate  in  the  course 
of  an  illegal  partnership,  94. 
a  court  of  equity  will  not,  on  the  application  of  an  exec- 
utor of  the  deceased  partner,  restrain  the  survivors  from 
using  the  name  of  the  deceased  in  their  trade,  109.  221. 
356. 
executors  of  last  surviving  partner  must  alone  sue  on  a 

joint  contract,  132. 
and  must  aver  in  the  declaration  that  their  testator  sur- 
vived the  other  partners,  134. 
executors  of  last  surviving  partner  solely  responsible  at 
law,  173. 

are  not  entitled  to  their  testator's  share  in  the  bu- 
siness without  an  express  agreement,  221. 
where  distinct  accounts  have  been   ordered  to  be  kept 
under  a  separate  commission  of  bankruptcy,  the  repre- 
sentative of  the  solvent  partner  may,  by  petition,  apply 
for  an  account  of  the  surplus,   notwithstanding  it  has 
been  paid  over  to  the  bankrupt,  311. 
the  executors  of  a  deceased  partner  are  tenants  in  common 

with  the  survivor  of  the  joint  estate,  348. 
it  is  not  imperative  on  a  pergonal  representative  to  become 
a  partner,  although  nominated  by  the  deceased  partner 
to  succeed  him,  221.  350. 


466  INDEX. 

EXECUTORS  AND  ADUmmTRATORS— continued. 

in  what  sense  the  partnership  continues  after  the  death  of 

a  partner,  351. 
executors  may  insist  upon  the  application  of  the  joi;it  pro- 
perty to  the  payment  of  the  joint  debts,  and  upon  a  di- 
vision of  the  surplus,  352. 
when  the  surviving   partner  does  not  account  with  the 
executors  of  the  deceased  within  a  reasonable  time,  a 
court  of  equity  will  enjoin  him  from  disposing  of  the 
stock  and  receiving  the  debts,  ibid. 
of  the  accounts  between  a  surviving  and  the  executors  of 

a  deceased  partner,  353. 
a  sale  of  the  share  of  the  deceased  by  his  executor  to  the 
partners  for  the  purpose  of  being  resold  to  himself,  is 
void,  355.  n. 
liabilty  of  the  executors  of  a  deceased  partner  in  equity, 

359 — 366. 
not  liable  in  respect  of  claims  that  were  not  consummate 

at  the  time  of  the  death  of  their  testator,  361. 
what  sort  of  dealing  between  the  creditors  and  the  sur- 
vivor operates  their  discharge,  362 — 365. 
when  equity  will  grant  relief  against  the  executors  of  a 
deceased  partner  on  a  joint  bond,  368 — 371. 
EXTENT. 

An  extent  against  one  partner  binds  only  his  actual  in- 
terest in  the  joint  effects,  216. 
FELONY. 

The  attainder  of  one  partner  for  felony  vests  all  the  part- 
nership effects  in  the  crown,  216. 
FRAUD. 

A  receipt  by  one  partner,  where  fraud  accompanies  it,  is 

no  discharge  of  the  debt  as  to  the  other,  62. 
where  a  premium  has  been  fraudulently  obtained  as  a  con- 
sideration for  entering  into  a  partnership,  a  court  of 
equity  will  order  it  to  be  returned,  107.  302. 
when,  on  the  ground  of  fraud,  a  court  of  equity  will  en- 
join an  outgoing  partner  from  carrying  on  trade  near  to 
his  former  partner,  107. 

one  partner  from  pledging  the  joint  credit  on  his 
own  account,  lOS. 
one  partner  is  bound  by  the  contract  of  his  copartner,  al- 
though it  is  a  fraud  upon  him,  147. 
a  partnership  cannot  acquire  a  property  in  goods  obtained 

by  the  fraud  of  one  of  the  partners,  ibid.  n. 
a  partner  guilty  of  a  fraud  in  a  contract  cannot,  when  sin- 
gly sued  upon  it,  plead  the  nonjoinder  of  iiis  copartners 
in  abatement,  159.  166.  n. 
when  a  commission  of  bankruptcy  is  fraudulently  issued, 


INDEX, 


467 


FRAUD — continued. 

with  the  view  of  dissolving  a  partnership,  it  will  be  su- 
perseded, 229. 
it  is  fraudulent  for  one  partner  to  allow  the  other  to  with- 
draw money  from  the  concern  at  the  time  it  is  insol- 
vent, 237. 
where  a  firm  obtain   separate  effects  from  one  partner 
either  by  actual  or  implied  fraud,  the  separate  creditors 
of  that  partner  are  entitled  to  prove  against  the  joint  es- 
tate, 292. 
the  assignees  on  behalf  of  the  joint  estate  may  prove 
against  the  separate  estate  where  the  debt  originated  in 
fraud,  318—321. 
a  trader,  labouring  under  a  mortal  disease,  cannot  quit  his 
trade   for  the  purpose  of  exonerating  his  real  estate 
without  subjecting  himself  to  the  imputation  of  fraud, 
368. 
GAZETTE.     See  tit.  Notice. 

When  the  Gazette  is  evidence  of  the  dissolution  of  a  part- 
nership, 250. 
GIFT. 

A  gift  to  two  out  of  three  partners,  in  compensation  of  a 
loss  sustained  by  the  firm,  does  not  make  the  subject  of 
it  joint  estate,  233. 
GOOD-WILL. 

Where  one  partner  purchases  of  the  other  the  good-will  of 
the  trade,  a  court  of  equity  will  restrain  the  latter  from 
carrying  on  the  same  trade  in  the  vicinity,  107. 
one  partner  is  not  allowed  to  secure  to  himself  the  good- 
will of  the  trade  by  renewing  the  lease  of  the  partner- 
ship premises  clandestinely,  232. 
a  sale  by  one  partner  to  the  other  of  his  share  in  the  busi- 
ness does  not  necessarily  include  the  good-will,  239. 
it  is  doubtful  whether  the  good-will  of  a  commercial  part- 
nership survives,  349. 
aliter  as  to  the  good-will  of  a  partnership  between  pro- 
fessional persons,  as  surgeons,  350. 
the  good-will  of  the  partnership  trade  passes  under  a  com- 
mission of  bankruptcy,  and  may  be  sold,  349.  n. 
GUARANTEE. 

When  one  partner  can  bind  the  firm  by  a  guarantee,  56. 

148. 
where  there  is  covin  the  firm  is  not  bound,  57. 
so  if  the  guarantee  relate  to  a  separate  transaction,  ibid. 
the  firm  will  be  bound  by  a  guarantee,  if  the  act  of  the 
partner  be  subsequently  recognized,  ibid. 

if  it  be  consistent 
with  a  previous 
73 


468  INDEX. 

GUARANTEE— co7i/znwec?. 

course  of  deal- 
ing, 57. 
if  the  other  part- 
ners acquiesce 
in  it,  ibid. 
if  it   have   refe- 
rence to  busi- 
ness transacted 
by  them,  58. 
in  an  action  on  a  guarantee  to  secure  repayment  of  an  ad- 
vance made  by  the  firm,  the  firm  may  join,  although 
the  guarantee  be  given  to  one  partner,  122. 
whether  the  partner  to  whom  the  guarantee  is  given  can 

maintain  a  separate  action,  qusere,  ibid. 
guarantee  to  a  partnership  for  the  fidelity  of  their  clerk 

or  servant,  how  construed,  123 — 125. 
a  guarantee  cannot  form  the  subject  of  a  mutual   credit, 
333. 
ILLEGAL  CONTRACTS. 

Contribution  cannot  be  enforced  where  the  original  con- 
tract was  malum  in  se,  82. 
nor  where  the  claim  arose  out  of  a  prohibited  transaction, 

ibid. 
a  security  for  repayment  of  half  the  money  paid  by  one 
partner  under  an  illegal  contract  has  been  held  valid,  83. 
but  that  decision  has  subsequently  been  denied,  ibid. 
ILLEGAL  PARTNERSHIPS.  See  tit.  Bank  of  England, 
Bottomry,  Coal  Merchants,  Insurance,  and  Joint 
Stock  Companies. 
A  bill  in  equity  for  an  account  will  not  lie,  if  the  partner- 
ship is  illegal,  94. 
aliier  as  to  the  legal  trade,  if  partners  embark  in  two 

trades,  the  one  legal  and  the  other  illegal,  ibid. 
and,  after  the  death  of  a  partner,  his  executor  cannot  re- 
fuse an  account  of  profits  made  in  an  illegal  partner- 
ship, as  against  creditors  and  legatees,  ibid. 
INDEMNITY. 

Partners,  by  offering  to  indemnify  a  dissentient  member 
against  loss,  will  not  be  permitted  to  engage  the  firm  in 
adventures  not  originally  contemplated,  6. 
when  an  indemnity  is  given  by  the  remaining  to  the  re- 
tiring partner,  245. 
a  partner,  retiring  under  a  covenant  of  indemnity,  may 
prove  outstanding  debts  paid  by  him  under  a  commis- 
sion against  the  continuing  partner,  324. 
when  the  continuing  partner  will  be  discharged  from  such 
a  covenant  by  his  bankruptcy  and  certificate,  ibid. 


INDEX. 


4C9 


INDEUmTY— continued. 

where  a  creditor  proves  under  a  commission  against  onfe 
partner,  and  afterwards  joins  him  in  an  action  against 
jthe  others,  an  indemnity  will  be  ordered,  329. 

where  a  partner  who  has  covenanted  to  indemnify  his  co- 
partner against  the  joint  debts,  dies,  equity  will  apply 
his  assets  in  discharge  of  those  debts,  357. 
INFANT. 

An  infant  may  be  a  partner,  1. 

but  he  will  not  be  liable  for  losses,  2. 

infant  partner  must  join  in  an  action  by  the  firm,  128, 

whether  he  must  be  joined  in  an  action  against  the  firm, 
guasre,  175. 

to  a  plea  in  abatement  for  his  nonjoinder,  the  plaintiff  may 
reply  his  infancy,  ibid. 

or,  without  such  a  replication,  may  sliow  that  he  has  avoid- 
ed the  contract,  176. 

what  is  the  consequence  of  the  plaintiff's  taking  issue  on 
the  plea  in  abatement,  where  he  cannot  show  an  avoid- 
ance of  the  contract,  ibid. 

a  ratification  by  an  infant  after  full  age  of  a  promise  made 
during  minority  must  be  in  writing,  ibid.  n. 

a  party  fraudulently  obtaining  a  sale  goods  to  an  infant  ia 
liable  either  as  principal  vendee  or  as  a  partner,  ibid. 

an  infant  partner  is  responsible  if  he  do  not,  on  attaining 
full  age,  disaffirm  the  partnership,  2.  n.  176. 

period  within  which  an  infant  should  repudiate  it,  177. 

to  a  plea  of  infancy  the  plaintiff  may  reply  that  the  infant 
ratified  the  contract  after  he  was  of  age,  ibid. 

what  must  be  proved  in  support  of  such  a  replication,  z6iW. 

where  one  defendant  pleads  infancy, the  plaintiff  inust  com- 
mence a  new  action  against  the  rest,  when,  ibid. 

infancy  need  not  be  pleaded  specially,  178. 

an  infant  partner  cannot  be  made  a  bankrupt,  261. 

an  infant  who,  on  the  death  of  a  partner,  becomes  entitled 
to  his  share,  may,  if  it  be  continued  in  the  trade,  elect 
to  take  either  interest  or  the  profits  that  have  arisen  from 
it,  355. 

where  the  heir  at  law  of  a  deceased  partner  is  an  infant, 
his  real  estates  cannot  be  sold  during  the  minority,  368. 

INSANITY. 

When  partnership  is  dissolved  by  the  insanity  of  a  part- 
ner, 218.  221. 
a  lunatic  cannot  be  made  a  bankrupt,  261. 

INSURANCE. 

Marine  insurances  by  a  partnership  were  formerly  pro- 
hibited, but  the  prohibition  is  now  relaxed,  29. 


470 


INDEX. 


INSURANCE— con^/m^e^. 

where  one  partner  effects  insurances  for  the  partnership, 
all  are  liable  for  the  premiums,  52. 

aliter   where  the  insurances   are  effected  by  op^  part- 
owner,  ibid.  n. 

contribution  could  not  formerly  be  enforced  for  losses  upon 
marine  insurances  underwritten  by  a  partnership,  85. 

the  underwriter  could  not  set  up  a  secret  partnership  in 
avoidance  of  a  policy,  159. 

where  one  partner  insures  his  share  or  interest,  the  insu- 
rance money  is  separate  property,  233.  301. 
INTEREST. 

A  joint  interest  is  necessary  to  constitute  a  partnership  as 
between  the  parties  themselves,  10. 

the  interest  of  partners  in  the  stock  in  trade,  31,  32. 
in  real  property,  32 — 35. 

payment  of  interest  by  one  partner  when  an  admission  of 
the  debt  by  the  firm,  195,  196. 

by  a  firm  on  a  debt  originally  separate, 
when  it  will  make  it  joint,  284. 

when  creditors  are  entitled  to  interest  on  their  debts  in 
bankruptcy,  294. 

a  person  who,  on  the  death  of  a  partner,  becomes  entitled 
to  his  share,  may,  if  it  be  continued  in  the  trade,  elect 
to  take  either  interest  or  the  profits  that  have  arisen 
from  it,  355. 

JOINT  COMMISSION.  See  tit.  Commission  of  bankruptcy- 

JOINT  DEBTS.     See  tit.  Debts. 

JOINT  ESTATE.     See  tit.  Property  and  Possession. 

Real  property  purchased  with  the  partnership  funds, 
though  conveyed  to  one  partner,  forms  part  of  the  joint 
estate,  34. 

aliter  if  the  purchase  money  was  lent  to  that  partner,  ibid. 

what  is  considered  joint  estate  after  a  dissolution,  232 — 
234. 

in  bankruptcy,  267 — 280. 

when  the  joint  is  converted  into  separate  estate  by  assign- 
ment from  one  to  the  other  partner,  238.  254.  267 — 
271. 

a  dissolution  merely  does  not  convert  the  joint  estate  into 
the  separate  property  of  the  partner  continuing  the  pos- 
session, 268. 

in  what  cases  the  joint  may  be  converted  into  separate 
estate  by  the  acts  of  the  partners,  271. 

ships  registered  in  the  name  of  one,  but  in  the  ordering 
of  both  partners,  are  joint  property,  277. 

assignees  under  a  separate  commission  may  be  compelled 


INDEX,  471 

JOINT  ESTATE— contintied. 

to  administer  the  whole  joint  estate  where  the  other 
partner  is  dead  or  abroad,  309. 
when  the  separate  estate  is  entitled  to  be  reimbursed  out 
of  the  joint  estate  what  has  been  proved  against  it  by 
the  joint  creditors,  316. 
where  both  joint  and  separate  estates  are  liable  for  a  debt, 
if  the  joint  estate  pay  more  than  its  proportion,  the  se- 
parate estate  must  contribute,  ibid. 
JOINT  STOCK  COMPANIES. 

Companies  are  either  incorporated  or  unincorporated,  2. 
laws  relating  to  unincorporated  companies  the  same  as  in 

ordinary  partnerships,  ibid. 
each  member  is  liable  for  the  company's  debts,  3.  17. 
incorporated  companies  are  not  to  be  considered  ordinary 

partnerships,  3. 
a  company   cannot  engage  in  adventures  not  originally 
contemplated  without  the  consent  of  all  the  members,  7. 
nor,  in  order  to  do  so,  compel  a  dissenting  member  to  re- 
ceive his  subscribed  capital  and  interest  and  withdraw, 
ibid. 
a  person  who  pays  his  deposit  on  shares  and  afterwards 
signs  the  deed  of  partnership,  is  a  partner  from  the 
time  of  the  deposit,  13. 
each  member  is  liable  to  contribute  towards  what  the 

manager  may  have  paid,  17.  80. 
when  a  subscriber  to  a  scheme  may  recover  back  his  sub- 
scription at  law,  76. 
how  the  expenses  of  bringing  a  scheme  into  operation  are 

to  be  borne,  77,  and  note,  ibid. 
a  member  of  a  company  cannot  sue  the  other  members  of 

the  company  for  work  and  labour,  78. 
nor  on  a  bill  drawn  upon  the  directors  of  the  company, 

and  accepted  by  their  secretary,  ibid. 
where  a  shareholder  enters  into  an  agreement  with  the 
directors,  with  a  clause  exempting  them  from  personal 
liability  on  certain  parts  of  it,  he  may  sue  them  on  the 
other  parts,  ibid. 
an  unincorporated  company,  acting,  or  assuming  to  act,  in  a 
corporate  character,  is  not  entitled  to  relief,  in  equity,  94. 
a  court  of  equity  will  not  interfere  with  voluntary  asso- 
ciations, unless  it  is  under  an  obligation  to  act,  ibid. 
a  bill  for  an  account  will  lie  against  a  corporation  in  the 

nature  of  a  partnership,  ibid.  213. 
who  must  be  made  parties  to  a  bill  filed  by  some  against 

the  other  members  of  a  company,  95 — 99. 
a  court  of  equity  will  compel  the  managers  of  a  company 
to  appoint  meetings  of  the  proprietors,  when,  104. 


472 


INDEX. 


JOINT  STOCK  COMPANIES— con^mwec?. 

will  not  interfere  with  a  company  for  the 

pose  of  managing  it,  111. 
will  restrain  the  members  of  a  company 
from  embarking  the  company  in  a  dif- 
ferent business,  112. 
a  party  paying  a  deposit  on  a  scheme  which  turns  out  to 

be  a  bubble  may  recover  it  back  in  equity,  109. 
in  actions  by  a  company  against  strangers,  who  must  be 

made  parties,  133. 
stipulation,  that  two  of  the  members  shall  carry  on  the 
trade  and  bring  actions,  cannot  be  afterwards  altered  so 
as  to  enable  one  only  to  sue  without  the  consent  of  all, 
ibid. 
legislature  sometimes'  enables  a  company  to  sue  in  the 

name  of  their  secretary,  133, 
but  this  does  not  enable  the  secretary  to  petition  for  a 

commission  of  bankruptcy,  ibid. 
the  company  may  in  such  a  case  file  a  bill  in  equity  in  his 

name,  143.  n. 
liability  of  shareholders  to  third  persons,  155. 
in  actions  against  a  company,  who  must  be,  made  parties, 

179. 
a  company  may  sometimes  be  sued  in  the  name  of  their 

secretary,  180. 
where  enrolment  of  the  names  of  the  members  is  required, 

a  member  whose  name  is  not  enrolled  is  liable,  181. 
an  incorporated  company  cannot  set  off  a  debt  due  to  them 
individually  from  a  member,  against  a  debt  due  to  him 
from  them  in  their  corporate  character,  334. 
unless  there  be  an  express  bye-law  enabling  them  to  do 
so,  ibid. 
KING.     See  tit.  Crown. 
LANDS.     See  tit.  Real  Property. 
LEASES. 

A  partner  taking  a  lease  of  the  partnership  premises  in  his 
own  name,  deemed  to  hold  them  for  himself  and  his  co- 
partners, 33. 

renewing  the  lease  clandestinely,  a  trustee  for 
the  partnership,  ibid.  232. 
where  a  deceased  partner  contracted  for  a  lease  of  partner- 
ship premises,  there  is  no  equity  against  the  landlord  to 
restrain  him  from  granting  it,   but  the  representatives 
will  be  restrained  from  disposing  of  it,  when  granted, 
except  for  joint  purposes,  34.  349 
where  partners  take  a  lease  for  a  term,  they  are  not  con- 
sidered as  contracting  a  partnership  for  the  same  term, 
225. 


INDEX.  473 

LIABILITY.     See  tit.  Agreement. 

A  person  may  contract  responsibility  as  a  partner  to  the 

world,  though  not  as  between  himself  and  the  firm,  10. 

Assignee  of  a  partner  when  not  liable  for  losses  inter  se, 

11. 
when  he  is,  and  how  he  may  discharge  himself  from  that 

liabity,  12.  n. 
a  participator  in  the  profits  is  liable  for  losses,  notwith- 
standing an  agreement  that  he  shall  not  sustain  them,  16. 
each  partner  is  liable  for  the  whole  of  the  partnership 

debts,  17. 
a  retiring  partner  receiving  an  annuity  fairly  proportioned 

to  his  interest  absolved  from  continued  liability,  20. 
aliter  if  notice  of  his  retirement  be  not  given,  ibid. 
or  if  he  continue  to  participate  in  the  profits,  21. 
the  annuity  must  also  be  certain  and  defined,  not  casual 

and  indefinite,  ibid. 
the  reservation  by  a  retiring  partner  of  a  contingent  in- 
terest will  continue  his  liability,  22. 
and  he  will  be  liable,  if,  in  addition  to  an  annuity,  he  is 
to  have  a  per-centage  on  sales  to  customers  by  him  re- 
commended, ibid. 
the  liability  of  a  partner  may  be  contracted  without  being 
a  partner  in  fact,  23. 

when  countervailed  by  notice,  25. 
of  the  liability  of  partners  for  the  acts  of  each  other,  when 
done  in  the  course  of  business,  36. 

on  simple  contracts,  37.  50.  146. 

for  an  act  of  assurance  out  of  the 

regular  course  of  business,  37. 

on  bill  or  notes,  38.     See  tit. 

Bills  of  Exchange. 
where  one  partner  acts  as  agent 

for  the  rest,  41. 
on  purchases,  51.  147. 

when  fraudulent- 
ly made,  52. 
after    a   counter- 
mand of autho- 
rit)'^,  52. 
for  premiums  of  insurance,  ibid. 
for  a  debt  fraudulently  contract- 
ed by  one  partner,  55 — 147. 
for  the  fraudulent  representa- 
tions of  a  copartner,  ibid. 
in  matters  unconnected  with  the 

partnership,  55. 
where  the  party  dealing  with  a 


474  INDEX. 

LIABILITY— con/mwcfl?. 

partner  knows  that  thebenefit 
is  intercepted  by  him,  ibid. 
in  transactions  out  of  the  usual 
course  of  dealing,  but  con- 
ducted with  the  knowledge  of 
the  firm,  56. 
under  a  guarantee,  ibid.  See 
tit.  Guarantee. 

a  deed,  58.  See  tit.  Deed. 
in  legal  proceedings,  63. 
to  third  persons,  145 — 211. 
a  dormant  partner  is  not  responsible  on  an  engagement 
not  on  the  joint  account,  where  he  was  not  known  to 
be  a  member  of  the  firm,  42.  163. 
partners  are  not  liable  where  the  party  dealing  with  one 
partner  is  aware  of  an  agreement  subjecting  him  to  in- 
dividual responsibility,  149. 
partners  in  a   coach  concern  having  separate   interests, 

liable  separately  to  tradesmen,  when,  150. 
liable  jointly  to  passengers,  ibid. 

to  render  a  person  liable  as  a  partner  on  a  contract,  he 
must  have  had  a  joint  interest  in  it  at  the  time  it  was 
made,  151 — 193. 
no  subsequent  acknowledgement  will  render  him  liable, 

ibid. 
person  permitted  to  share  in  goods  after  they  are  pur- 
chased is  not  liable  to  the  vendor,  151,  152. 
secus  if  a  joint  interest  attaches  the  instant  the  goods  are 

purchased,  152. 
partners  are  not  jointly  responsible  for  the  capital  brought 

in  by  any  one  partner,  153. 
where  there  is  neither  communion  of  profit  nor  a  joint 

interest,  there  is  no  liability  as  a  partner,  ibid. 
a  person  to  be  liable  as  a  partner  must  have  had  credit 

given  to  him  as  a  member  of  the  firm,  154. 
members  of  a  club,  to  what  extent  liable  for  goods  ordered 

by  one,  155. 
how  the  liability  of  a  firm  is  extinguished,  156. 
by  actual  satisfaction,  ibid. 
by  taking  a  separate  security,  ibid. 

243. 
by  a  detriment  sustained  by  the  firm 
through  the  means  of  the  creditor, 
ibid. 
assignment  of  partnership  effects  to  one  partner,  who  un- 
dertakes to  pay  the  joint  debts,  does  not  discharge  the 
other,  156. 


INDEX.  475 

hi  ABILITY— co7itinued.  . 

promise  by  a  creditor  to  exonerate  a  partner  is  no  discharge, 

157.  242. 

taking  separate  notes  of  one  partner  for  the  joint  debt  no 
discharge,  when,  157.  241.  ,      ,    ,     ,  •,,  .     i 

a  statement  by  three  partners  to  a  fourth  that  a  bill  had 
been  paid,  on  the  faith  of  which  the  accounts  after  a  dis- 
solution were  settled,  when  no  discharge  of  the  fourth, 

157.  242. 
dealing  with  the  remaining  and  newly  admitted  partners 

after  the  retirement  of  some  of  the  old  partners,  is  no 

discharge  of  the  latter,  158.  242. 
of  the  liability  of  partners  in  actions  quasi  ex  contractu, 

159. 

for  wrongs,  160 — 162. 

a  party  fraudulently  obtaining  a  sale  of  goods  to  an  infant 
is  liable  either  as  a  principal  vendee  or  as  a  partner,  176. 
-     an  infant  partner  who  does  not,  on  attaining  full  age,  dis- 
affirm the  partnership  is  liable,  2.  n.  177. 
of  the  liability  of  one  partner  ia  equity  when  the  other  is 
out  of  the  kingdom,  212. 

partners  engaging  in  smuggling  trans- 
actions, 214,215, 
a  retiring  partner  after  a  dissolution, 
240 — 251. 

when  discharged  by  subsequent 
dealings,  241—245. 
of  a  continuing  partner  after  a  disso- 
lution, 252—256. 
of  a  surviving  partner,  358. 
of  the  executors  of  a  deceased  partner 
359 — 366. 

not  liable  in  respect  of  claims  that 
were  not   consummate  at  the 
time  of  the  death  of  their  tes- 
tator, 361, 
notice  of  the  death  of  a  partner  not 
necessary  to  protect  his  estate 
from  future  liability,  248.  n. 
362. 
what  sort  of  dealing  with  the  sur- 
vivor operates  a  discharge  of 
the   executors   of    a  deceased 
partner,  362. 

LIBEL.     See  tit.  Slander. 

In  the  publication  of  libels  by  booksellers,  one  partner  is 
answerable  for  the  acts  of  the  other,  161. 
74 


476  INDEX. 

LIEN. 

On  a  dissolution  of  partnership^  if  one  partner  bona  fide 
transfers  his  interest  to  the  other  who  becomes  a  bank- 
rupt, the  joint  creditors  have  no  lien,  238,  254.  267 — 
271, 

where,  on  a  dissolution,  it  is  agreed,  that  certain  articles 
shall  belong  to  one  partner,  and  that  a  fund  shall  be  set 
apart  for  the  payment  of  debts  the  other  partner  has 
no  lien  on  those  articles,  if  the  fund  prove  deficient 
239. 

when,  under  a  commission  against  a  dormant  and  an  osten- 
sible partner,  the  joint  creditors  resort  to  the  separate 
estate  of  the  latter,  his  separate  creditors  have  a  lien 
upon  any  surplus  of  the  joint  estate  to  the  extent  which 
their  funds  have  been  diminished,  292. 

joint  and  separate  creditors  have  respectively  a  lien  upon 
the  surplus  of  each  estate  in  bankruptcy,  294. 

the  lien  of  a  solvent  partner  upon  the  joint  estate  is  not 
destroyed  by  the  bankruptcy  of  his  copartner,  306. 

where  stock  transferred  by  a  customer  to  a  banking  firm 

as  a  security  for  advances  has  been  sold,  and  part  of  it 

is  afterwards  repurchased,  the  customer  has,  on  the 

bankruptcy  of  the  firm,  a  specific  lien  on  that  part,  361. 

LIMITATIONS,  STATUTE  OF. 

A  written  memorandum  is  now  necessary  to  take  a  case 
out  of  this  statute,  63.  n.  195.  n. 

An  acknowledgment  by  one  partner  of  a  debt  is  sufficient 
to  take  it  out  of  the  statute  against  the  others,  64.  195. 

when  the  statute  maybe  pleaded  in  equity  in  bar  of  the 
relief,  102. 

when  an  action  must  be  brought  to  avoid  a  plea  of  the  sta- 
tute where  one  partner  resides  abroad  and  the  others  in 
England,  142. 

in  a  joint  action  on  a  note,  an  acknowledgment  by  one 
maker  will  revive  the  debt  against  the  other,  194. 

so  an  acknowledgment  by  one  will  have  the  same  efiect  in 
a  separate  action  against  the  other,  195. 

when  the  payment  of  a  dividend  under  a  commission 
against  one  maker  will  deprive  the  other  of  the  benefit 
of  the  statute,  ibid.  196. 

payment  of  interest  on  a  note  by  one  maker  after  the  death 
of  the  other  will  not  take  the  case  out  of  the  statute  as 
against  the  executors  of  the  latter,  196. 

to  destroy  the  efiect  of  a  plea  of  the  statute  by  one  who  is 
jointly  liable,  the  acknowledgment  by  the  other  must 
be  clear  and  explicit,  ibid. 
LIMITED  PARTNERSHIPS. 

What  are  limited  partnerships,  5,  6. 


INDEXT.  477 

LOAN. 

A  loan  by  the  outgoing  to  the  continuing  partner  at  legal 
interest,  in  addition  to  an  annuity,  does  not  continue 
the  partnership,  22. 

to  an  individual  partner  to  form  his  share  of  the 

capital,  does  not  create  a  joint  debt,  153. 
of  money  to  one  partner,  and  a  subsequent  loan  of 
it  by  him  to  the  firm,  does  not  create  a  debt  as 
between  the  original  lender  and  the  firm,  283. 
a  partner  lending  money  to  his  partnership,  or  a  minor 
firm  lending  to  the   aggregate  firm,  not  admitted   to 
prove  against  the  joint  estate  in  competition  with  the 
joint  creditors,  292. 
a  firm  lending  money  to  an  individual  partner  will  not  be 
admitted  to  prove  against  his  separate  estate  in  compe- 
tition with  separate  creditors,  317. 
LORDS'  ACT. 

A  note  for  payment  of  the  weekly  allowance  under  the 

Lords'  act  may  be  signed  by  one  partner,  66. 
it  is  binding  though  signed   by  one  partner  after  a  disso- 
lution, ibid. 
LUNACY.     See  tit.  Insanity.     ' 
MANAGER. 

The  manager  of  a  partnership,  who  acts  as  one  of  the  part- 
ners, is  liable  to  the  world  in  that  character,  10.  23. 
but  he  is  not  liable  to  loss  as  between  himself  and  the  firm, 

11. 
a  manager  is  not  liable  to  contribute  any  proportion  of  the 
losses,  80. 
MARRIAGE. 

The  marriage  of  a  feme  sole  partner  is  a  dissolution  of  the 
partnership,  226. 
MINES. 

In  what  cases  a  receiver  of  a  mine  or  colliery  will  be  ap- 
pointed, 115. 
mines  are  liable  to  the  joint  debts,  2,33.  267.  n. 
MORTGAGE.     See  tit.  Agreement. 

It  has  been  doubted  whether  a  mortgage  to  a  firm  is  avail- 
able to  a  new  partnership,  formed  by  the  addition  of 
another  member,  125. 
a  mortgage  by  one  partner  to  the  others  of  his  share  iti 
the  joint  stock  is  not  available  in  bankruptcy,  unless  ex- 
clusive possession  be  given,  301. 
MUTUAL  CREDIT.     See  tit.  Set-off. 
NOLLE  PROSEQUI. 

When  one  partner  pleads  his  bankruptcy  and  certificate, 
the  plaintiff"  may  enter  a  nolle  prosequi  as  to  him,  and 
proceed  against  the  rest,  175. 


478 


INDEX. 


NOLLE  PROSEQUI— con^mwe^. 

aliter  where  one  pleads  infancy,  177. 

a  partner  who  pleads  his  bankruptcy  is  rendered  a  compe- 
tent witness  for  his  copartners,  if  the  plaintiff  enters  a 
nolle  prosequi,  199.  202. 

where  a  joint' creditor  sues  a  bankrupt  partner  under  whose 
commission  he  has  proved,  a  court  of  law  will  not  or- 
der a  nolle  prosequi  to  be  entered,  329. 
NOMINAL  PARTNER. 

Who  is  a  nominal  partner,  12. 

a  person  becomes  so  by  lending  his  name,  23. 

principle  upon  which  a  nominal  partner  is  liable,  ibid. 

holding  himself  out  as  a  partner  is  sufficient,  ibid. 

or  allowing  his  name  to  be  used  on  bills  of  parcels,  24, 

a4vertising  a  dissolution,  qusere  whether  sufficient,  ibid. 

consent  or  knowledge  of  the  use  of  his  name  must  be 
shown,  ibid. 

a  nominal  partner,  who  stipulates  that  he  shall  not  be  liable 
for  losses,  is  not  responsible  to  creditors  who  are  aware 
of  the  stipulation,  25.  158. 

a  nominal  partner  is  not  liable  to  contribute  any  propor- 
tion of  losses  inter  se,  80. 

in  an  action  by  the  firm,  a  nominal  partner  should  be 
joined,  126. 
,     unless  it  be  shown  that  he  has  no  interest,  129. 

a  debt  incurred  by  a  nominal  partner  may  be  set  against 
a  debt  due  to  the  firm,  138. 

when  a  nominal  partner  is  a  competent  witness  for  the 
firm,  141. 
NOTICE. 

Notice  of  the  retirement  of  a  partner  is  necessary  to  pro- 
tect him  from  future  liability,  20. 

notice  to  one  partner,  in  what  cases  considered  as  notice 
to  all,  66.  197. 

by  one  partner  available  as  a  notice  by  the  firm,  66. 
that  the  partnership  has  been  dissolved,  to  what 
.    extent  evidence  against  him,  92. 

when  an  ejectment  will  lie  by  one  partner  against  another 
without  proving  a  notice  to  quit,  ibid. 

notice  to  quit  signed  by  one  partner  in  the  names  of  all, 
when  sufficient,  66.  n. 

of  the  dishonour  of  a  bill,  when  not  necessary  to  be  given 
to  a  firm,  197. 

that  the  firm  will  not  be  bound  by  the  act  of  a  single  part- 
ner, absolves  them,  49.  149.  198. 

a  partnership  for  an  indefinite  term  may  be  dissolved  by 
notice.  223. 


INDEX. 


479 


NOTICE— cona'nwe^. 

notice  of  the  death  of  a  partner  is  not  necessary  to  pro- 
tect his  estate  from  future  liability,  248.  n.  362. 

of  the  dissolution  of  a  partnership,  how  to   be 

given,  248—251.  .     i--ii  r 

of  a  dissolution  to  the  indorsee  of  a  bill,  not  et- 
fectual  without  notice  to  the  payee,  249. 
payment  to  one  partner,  without  notice  that  he  has  no 

authority  to  receive,  good,  252.  ,    .      „      •, 

aliter  if  the  payer  have  notice  of  the  want  of  authority, 

debts  due  to  a  partnership,  which  are  assigned  by  some 
to  the  other  partners,  remain  in  the  ordering  of  the 
partnership  until  notice  of  the  assignment  is  given  to 
the  debtors,  275. 
OUTLAWRY. 

A  partner,  who  is  abroad,  and  does  not  appear  to  an  action 

against  the  firm,  may  be  outlawed,  163. 
the  courts  will  assist  the  plaintiflf  in  such  a  proceeding,  164. 
where  one  of  two  partners  is^outlawed,  the  other  may  be 

proceeded  against  alone,  173. 
how  to  declare  in  such  a  case,  ibid.  174. 
the  outlawry  of  one  partner  does  not  alter  the  nature  ot  a 

joint  contract,  174.  p    ,         j  u ^        i 

judgment  of  outlawry  against  two  of  three  debtors  does 

not  make  the  debt  separate,  174.  316. 
a  misnomer  of  the  outlaw  is  a  fatal  variance,  174. 
on  the  outlawry  of  one  partner,  all  the  partnership  effects 
are  vested  in  the  crown,  216. 
OWNER.   See  tit.  Possession.  r  .u      i  f 

The  ostensible  partner  is  reputed  owner  of  the  dormant 
partners  share  in  the  joint  effects,  278—280.  301. 
PARTICULARS,  BILL  OF.  ,,,.,,  , 

when  a  party  is  entitled  to  the  benefit  of  evidence  beyond 
the  contents  of  his  particular  delivered  under  a  judge  s 
order,  88. 
PARTNERS    See  tit.  Agreement,  Liability. 
Who  may  be  partners,  1. 
who  are  partners,  4. 
persons  who  trade  jointly,  ibid, 
who  share  profits,  i6tc^. 
who  appear  ostensibly  as  joint  traders,  ibid. 
the  representatives  of  a  dece^ased  partner  arc  not  partners 

with  the  survivor,  ibid.  378. 
nor  a  person  introduced  by  one  partner  into  the  concern 

without  the  consent  of  the  other,  5. 
partners  cannot  engage  the  firm  in  adventures  not  ori- 
ginally contemplated  without  the  consent  ot  all,  6. 


480 

PARTNERS— con/mwec?. 


INDEX. 


although  they  offer  to  indemnify  a  dissenting  partner 
against  loss,  6. 

equity  will  restrain  partners  from  engaging  in  a  concern 
directly  adverse  to  their  undertaking,  7. 

a  person  may  be  partner  to  the  world,  though  not  a  part- 
ner inter  se,  10. 

distinction  between,  ibid. 

assignee  of  a  partner,  when  not  liable  for  losses  inter  se,\\. 

when  he  is,  and  how  he  may  discharge  himself  from  that 
liability,  12.  n. 

who  is  an  ostensible  partner,  12. 

who  a  dormant  partner,  ibid. 

who  a  nominal  partner,  ibid. 

a  participator  in  the  profits  is  chargeable  as  a  partner,  13. 

on  what  principle,  14. 

each  partner  is  liable  for  the  whole  of  the  partnership 
debts,  17. 

who  are  not  partners,  18. 

a  traveller,  clerk,  or  agent,  paid  by  a  portion  of  the  sums 
received,  ibid. 

a  factor  receiving  a  per-centage  on  the  amount  of  goods 
sold,  ibid. 

a  person  receiving  an  agreed  sum  on  the  sale  of  goods  by 
his  recommendation,  ibid. 

distinction  between  an  interest  in  the  profits  and  the  pay- 
ment of  a  sum  proportioned  to  them,  as  to  constituting 
a  partner,  ibid. 

a  person  employed  to  sell  goods  upon  an  agreement  that 
he  shall  have  all  he  can  procure  for  them  beyond  a 
certain  sum,  is  not  a  partner,  1 9. 

a  person  working  a  lighter,  who  is  to  receive  one  half  her 
gross  earnings  for  his  labour,  not  a  partner,  ibid. 

aliter  if  the  agreement  had  been  to  share  ihe py^ojits,  19. 

a  grazier  who,  for  depasturing  cattle  is  to  receive  one-half 
of  the  produce  above  their  estimated  value,  not  a  part- 
ner, ibid. 

a  person  who,  on  effecting  policies  of  insurance  for  a  bro- 
ker, is  entitled  to  half  the  brokerage,  not  a  partner,  20. 

an  agent  paid  by  a  proportion  of  the  profits  is  not  a  part- 
ner, ibid. 

a  man  may  become  a  nominal  partner  by  lending  his  name, 
23. 

principle  upon  which  a  nominal  partner  is  liable,  ibid. 

holding  himself  out  as  a  partner  is  sufficient,  ibid. 

or  allowing  his  name  to  be  used  on  bills  of  parcels,  24. 

advertising  a  dissolution  leaves  it  equivocal,  ibid. 


INDEX. 


481 


PARTNERS— con/mwec?. 

consent  or  knowledge  of  the  use  of  his  name  must  be 

shown  24. 
partners  are  joint  tenants  of  the  partnership  effects  with- 
out benefit  of  survivorship,  31. 
of  the  power  of  one  partner  to  bind  the  others,  36. 

by  what  is  done  in  the  course  of  business,  37. 

by  simple  contracts,  37.  50.  56—146. 

by  an  act  or  assurance  out  of   the   regular 

course  of  business,  37. 
by  a  bill  or  note,  38.     See  tit.  Bills  op  Ex- 
change. 
as  agent,  41. 

subsequent  approbation  implies  previous 
authority,  ibid. 
by  sales,  51. 
by  purchases,  ibid. 

when  fraudulently  made,  52. 
after  a  countermand  of  authority,  ibid. 
by  effecting  policies  of  insurance,  ibid. 
by  a  pledge  of  partnership  effectwS,  ibid. 

after  partition,  53. 
by  a  debt  fraudulently  contracted,  55.  147. 
by  fraudulent  representations,  ibid. 
in  matters  unconnected  with  the  partnership, 

55. 
where  the  party  knows  that  the  benefit  is  in- 
tercepted by  a  single  partner,  ibid. 
out  of  the  usual  course  of  dealing  where  the 
business  is  transacted  with  the  knowledge 
of  the  firm,  56. 
by  a  guarantee,  ibid.     See  tit.  Guarantee. 
by  a  deed,  58.     See  tit  Deed. 
by  a  release,  60.     See  tit.  Release. 
by  a  receipt,  62     See  tit.  Receipt. 
in  legal  proceedings,  63. 
by  a  submission  to  arbitration,  66.     See  tit. 

Arbitration. 
in  bankruptcy,  68.     See  tit.  Bankruptcy. 
legal  remedies  between  partners,  69. 

by  action  of  account,  ibid. 

covenant,  70.     See  tit.  Covenant. 

assumpsit,  72.     See  tit.  Assumpsit. 

trover,  90.     See  tit.  Trover. 

equitable  remedies  between  partners,  93.  See  tit  Equity. 

legal  remedies  for  partners  against  strangers,  116 — 142. 

where  the  same  person  is  a  common  partner  in  two  con- 


482  INDEX. 

PARTNERS— continued. 

cerns,  no  legal  contract  can  arise  between  them,  88. 

lis. 

when  a  contract  between  such  parties  may  be  enforced  as 

an  equitable  agreement,  119. 
where  an  individual  is  a  common  member  of  two  con- 
cerns,  satisfaction   to  him  as  a  member  of  the  one  is 

satisfaction  to  the  other  concern,  120. 
where  one  partner  cannot  recover,  it  is  a  good  defence  to 

an  action  by  all,  ibid. 
no  action  can  be   maintained  by  partners,  where   one  of 

them  resides  and  trades  in  an  enemy's  country,  121. 
aliter  if  the  trade  be  licensed,  ibid. 
or  if  the  residence  of  the  partner  be  unconnected  with  an 

adherence  to  the  enemy,  ibid. 
equitable  remedies  for  partners  against  strangers,  142 — 

144. 
legal  remedies  against  partners,  145 — 211. 
equitable  remedies  against  partners,  211 — 213. 
proceedings  against  partners  at  the  suit  of  the  crown,  214 

217. 
the  consequences  of  a  dissolution  to  the  retiring  partner, 

236 — 252. 

to  the  remaining  partner, 
252—256. 
the  solvent  partner  will  in  some  cases  be  appointed  the 

receiver  of  the  joint  estate,  but  without  a  salary,  232. 

327. 
of  the  bankruptcy  of  the  partners,  256.  347. 
the  separate  creditors  of  one  partner  will  not  be  allowed 

to  prove  against  the  joint  estate  a  debt  due  from  the 

partnership  to  that  partner,  290. 
unless  the  separate  effects  creating  the  debt  were  obtained 

by  actual  or  implied  fraud,  292. 
from  what  circumstances  fraud  will  be  inferred,  ibid. 
when  one  partner  may  sustain  a  commission  against  his 

copartner,  298. 
the  bankruptcy  of  a  partner  determines  his  controul  over 

the  joint  estate,  305. 
but  it  does  not  effect  the  right  of  the  solvent  partner  to 

dispose  of  the  joint  estate  for  past  purposes,  306. 
in  what  cases  the  assignees,  in  respect  of  the  joint  estate, 

may  prove  against  the  separate  estate,  316 — 321. 
not  in  cases  of  contract,  or  where  the  firm  was  privy  and 

assented  to  the  creation  of  the  debt,  316 — 318. 
aliter  where  the  funds  creating  the  debt  have  been  taken 

by  the  single  partner  with  the  fraudulent  intention  of 

augmenting  his  separate  estate,  318 — 321. 


INDEX.  483 

PARTNERS— con  ^/nt^erf. 

what  is  a  fraudulent  taking  within  the  meaning  of  the  ex- 
ception, 318. 

in  what  case  one  partner,  a  creditor  of  the  partnership, 
may  claim  the  surplus  of  the  joint  estate,  and  prove 
againist  the  separate  for  any  deficiency,  321 — 323. 

a  partner  retiring  under  a  covenant  of  indemnity  may 
prove  outstanding  debts  paid  by  him  under  a  commis- 
sion against  the  continuing  partner,  324. 

but  the  bankruptcy  and  certificate  of  the  continuing  part- 
ner will  discharge  him  from  such  a  covenant,  ibid. 

a  solvent  partner  may  prove  against  the  bankrupt  partner 
any  debt  due  to  him,  provided  he  pay  the  partnership 
debts,  or  indemnify  the  bankrupt's  estate  against  them, 
323. 

payments  by  a  solvent  partner,  after  the  bankruptcy  of  his 
copartner,  may  be  proved  under  a  separate  commission 
against  the  latter,  321 — 327. 
partners  are  sureties  for  each  other  within  the  meaning  of 

Sir  Samuel  Romilty^s  act,  326. 
proof  by  a  joint  creditor  under  a  separate  commission  does 

not  discharge  the  solvent  partner,  328, 
where  two  partners  have  stopped,  and  one  is  a  bankrupt, 
a  debtor  cannot  refuse  to  pay  money  due  to  them,  341. 
of  the  death  of  partners,  348 — 371. 
the  liability  of  a  surviving  partner,  358. 

of  the  assets  of  a  deceased  partner,  359 — 366. 
not  liable  for  claims  which  were  not  consum- 
mate in  his  lifetime,  361. 
what  sort  of  dealing  with  the  survivors  ope- 
rates a  discharge,  362. 
of  real  estates  of  a  deceased  partner,  367. 

PARTNERSHIP. 

Partnership  defined,  1. 

public  or  private,  2. 
public  partnership,  what,  ibid. 
private  partnership,  what,  and  how  formed,  3. 
consent  necessary  to  the  formation  of  partnership,  4. 
how  testified,  ibid. 
implied  as  operative  as  express,  ibid. 
written  articles  not  essential  to  constitute  a  partnership, 
ibid. 

a  joint  interest  not  alone  sufficient,  ibid. 
partnership  must  be  of  some  lawful  trade,  5. 

no  distinction  between  that  v/hich  is  malum 
in  se  and  that  which  is  malum  prohibi- 
tum, ibid. 
75 


484  INDEX. 

PARTNERSHIP— co72^in  wee?. 

for  importing  prohibited  goods  invalid,  5. 
partnerships  are  not  confined  to  trades,  ibid. 

limited,  6. 
partnership  cannot  be  extended  to  purposes  not  contem- 
plated without  the  consent  of  all  the  members,  ibid. 
an  offer  to  indemnify  a  dissenting  partner  will  not  enable 
the  others  to  extend  the  operations  of  the  partnership 
ibid. 
a  covenant  in  articles  of  partnership  that  none  of  the  part- 
ners shall  engage  in  the  same  business  on  his  own  ac- 
count is  permitted,  7. 
partnership  as  between  the  parties,  7.  10. 

regulated  by  the  articles  vvhere  they  exist,  8. 
by  the  implied  contract,  if  there  are 
not  articles,  ibid. 
if  there  is  no  agreement  to  the  contrary,  the  loss  must  be 

equally  borne,  and  the  profits  equally  divided,  ibid. 
distinction  between  partnership  with  respect  to  the  world 

and  partnership  between  the  parties,  10. 
wherever  a  partnership  as  to  third  persons  is  established, 

it  is  presumed  to  exist  between  the  parties,  12. 
partnership  as  between  the  parties  and  third  persons,  12, 

13. 
a  partnership  contract  tainted  by  usury  not  valid,  25. 
partnership  for  a  single  dealing,  when  terminated,  218. 

for  a  definite  term  dissolved  by  death,  219 — 
'    221. 

by  confirmed  in- 
sanity, 221. 
by   bankruptcy, 

227. 
by   effluxion   of 
time,  226. 
for  an  indefinite  term  dissolved  at  pleasure, 

223. 
dissolved  by  the  decree  of  a  court  of  equity 
upon  the  misconduct  of  partners,  226. 

by  the  marriage  of  a  feme  sole 

partner,  ibid. 
by  an  execution,  229. 
by  an  award,  ibid. 
the  existence  of  engagements  with  third  persons  is  no  ob- 
jection to  a  dissolution,  224. 
when  a  court  of  equity  will  interfere  where  the  dissolution 
of  a  partnership  is  opposed,  225. 

inhibit  the  dissolution  of  a  part- 
nership, ibid. 


INDEX.  485 

PARTNERSHIP— cow/mwec?. 

the  consequences  of  the  dissolution  of  a  partnership,  230 
— 256. 

partnership  continues,  notwithstanding  a  dissolution,  until 
the  joint  affairs  are  arranged,  231. 

the  consequences  of  a  dissolution  to  the  retiring  partner, 
236—252. 

to  the  remaining  part- 
ner, 2  52 — 256. 

notice  of  the  dissolution  of  a  partnership,  how  to  be  given, 
248 — 251. 

the  consequences  of  a  dissolution  by  bankruptcy,  256 — 347. 

where  a  premium,  payable  by  instalments,  is  agreed  to  be 
paid  to  a  sole  trader  for  taking  two  persons  into  part- 
nership with  him,  and  the  firm  becomes  bankrupt  be- 
fore all  the  instalments  are  due,  they  must  nevertheless 
be  paid  as  they  become  due,  unless  fraud  can  be  shown, 
302. 

partnership  revives  after  a  commission  of  bankruptcy 
against  partners  is  superseded,  347. 

the  consequences  of  a  dissolution  by  death,  348 — 371. 

PAYMENT. 

Payment  to  one  partner  is  payment  to  the  firm,  62. 

an  acknowledgment  of  payment  by  one  partner  is  con- 
elusive  against  the  demand  of  the  other  partner,  63. 

where  an  individual  is  a  common  member  of  two  concerns, 
payment  to  him  as  a  member  of  the  one  is  payment  to 
the  other  concern  in  respect  of  the  same  debt,  120. 

where  there  are  several  demands,  a  payment,  which  is 
not  at  the  time  appropriated  to  either  demand  by  the 
debtor  or  the  creditor,  will  be  applied  by  the  law  to 
the  most  burthensome,  or  if  they  are  equally  so,  to  the 
oldest,  244. 

partnership  money  applied  in  discharge  of  joint  debt, 
ibid.  n. 

payment  to  outgoing  partner,  after  notice  of  dissolution, 
when  good,  252. 

when  payments  made  by  surviving  partners  will  be  ap- 
plied in  discharge  of  a  debt  due  from  the  partnership  at 
the  time  of  the  death  of  a  partner,  364. 

PENALTY. 

Where  a  penalty  is  reserved  on  breach  of  a  partnership 
agreement  to  be  sued  for  by  one  partner,  it  is  no  ob- 
jection to  his  action  that,  if  he  incurred  the  penalty  he 
could  not  sue  himself,  71. 


486  INDEX. 

PLEADING.     See  tit.  Abatement  and  Action. 

In  an  action  by  a  surviving  partner  he  must  declare   as 

survivor,  131. 
but  in  an  action  against  him  he  need  not  be  charged  as 

survivor,  172. 
it  is  no  variance  to  allege  that  a  bill  accepted  by  four  per- 
sons w^as  accepted  by  three  only,  or  that  a  bill  drawn 

by  two  was  drawn  by  one,  169. 
where  one  of  two  partners  is  outlawed,  how  to  declare 

against  the  other,  173. 
what  counts  may  be  joined  in  an  action  against  a  solvent 

partner  alone,  175. 
to  a  plea  of  infancy  the  plaintiff  may  reply  that  the  infant 

ratified  the  contract  after  he  was  of  age,  177. 
what  must  be  proved  in  support  of  such  a  replication,  ibid. 
how  assignees  under  a  joint  commission  must  declare  for 

a  joint  debt,  342. 
.    how  for  a  separate  debt,  343. 

how  assignees  under  separate  commissions  must  declare 

for  a  joint  debt,  345. 

PLEDGE. 

Power  of  one  partner  to  bind  the  firm  by  a  pledge  of  the 
partnership  effects,  52 — 54. 

POSSESSION. 

goods  left  in  the  possession  of  the  bankrupt  by  the  true 

owner  vest  in  the  assignees,  271. 
the  possession  must  continue  down  to  the  time  of  the 

bankruptcy,  272. 
but  a  removal   made  in  contemplation  of  bankruptcy  is 

fraudulent,  fizfi?. 
the  goods  must  be  left  in  the  possession  of  the  bankrupt 

with  the  consent  of  the  true  owner,  ibid. 
in  cases  of  partnership  such  consent  will  be  inferred,  when, 

273. 
possession  by  one  partner  after  a  dissolution  not  of  itself 

sufficient  to  convert  the  joint  into  separate  estate,  ibid. 
unless  the  other  partners  are  guilty  of  laches,  ibid. 
property  wrongfull)''  withheld  by  one  partner  from  the 

others  does  not  pass  to  his  assignees,  ibid. 
property  of  an  old  in  the  possession  of  a  new  firm,  when 

it  passes  to  the  assignees  of  the  latter,  ibid. 
property  of  a  firm  selling  goods  in  the  names  of  two  of  the 

partners,  when  in  the  ordering  of  the  two,  274. 
possession  by  one  partner  of  property  under  a  conditional 

assignment  will  vest  it  in  his  assignees,  when,  ibid. 


INDEX. 


487 


POSSESSION— co7i/im<e^. 

debts  due  to  a  partnership  are  within  the  statute,  275. 

and,  when  assigned  by  some  to  the  other  partners,  they 
remain  in  the  ordering  of  the  firm  until  notice  of  the 
assignment  is  given  to  the  debtors,  ibid. 

property  in  the  possesion  of  one  partner,  under  a  trust  to 
pay  the  joint  debts,  does  not  pass  to  his  assignees,  276. 

a  ship  in  the  possession  of  one  who  is  not  the  registered 
owner,  is  within  the  statute,  277. 

so  are  ships  in  the  possession  of  two  partners,  but  which 
are  registered  in  the  name  of  one,  ibid. 

so  is  a  ship  registered  in  the  names  of  two  partners,  but  in 
the  possession  of  one,  ibid. 

the  share  of  a  dormant  partner  in  the  joint  stock  left  in  the 
possession  of  the  ostensible  partner  passes  to  the  as- 
signees of  the  latter  on  his  bankruptcy,  278 — 280. 

PRACTICE. 

One  partner  can  bind  the  others  by  an  agreement  to  accept 

common  bail,  65,  and  see  note,  ibid. 
in  what  manner  the  appearance  of  partners  to  an  action 

against  the  firm  is  to  be  enforced,  163. 

PROFIT  AND  LOSS. 

persons  who  share  in  pi:ofit  and  loss  are  partners  inter  se 

and  to  the  world,  1.  8.  10. 
persons  who    participate   in  profits  are    partners   to  the 

world,  though  not  inter  se,  4.  13 — 17. 
distinction  between  an  interest  in  profits  and  a  payment 

proportioned  to  a  given  quantum  thereof,  17 — 20. 
the  assignee  of  a  partner,  who  does  not  act  as  a  partner,  is 

not  liable  for  losses  inter  se,  11. 
an  assignee  who  acts  as  a  partner  is  liable  to  contribute  t) 
losses  during  that  time,  but  he  may  rid  himself  of  that 
liability  by  assigning  to  an  insolvent,  12  n. 
equity  on  decreeing  the  specific  performance  of  an  agree- 
ment for  a  partnership  will  not  direct  an  account  of  pre- 
vious profits,  110. 
of  profits  where  the   trade  is  continued  to  be  carried  on 
with  partnership  effects  after  a  dissolution,  255. 

where  the  trade  is  carried  on  by  the  solvent  partner 
after  the  bankruptcy  of  his  copartner,  302. 

by  the  surviving  part- 
ner after  the  death  of 
his  copartner,  354. 
a  person  who,  on  the  death  of  a  partner,  becomes  entitled 
to  his  share,  may,  if  it  be  continued  in  the  trade,  elect 


488  INDEX. 

PROFIT  AND  IuOSS—co7itinued. 

to  take  either  interest  or  the  profits  that  have  arisen 
from  it,  355. 

PROMISE. 

When  a  promise  by  one  partner  to  pay  to  the  assignee  of 
a  creditor  a  debt  owing  by  the  firm  to  that  creditor  is 
binding  on  the  firm,  64.  197. 

where  one  partner  pays  the  whole  of  a  joint  debt  under  an 
illegal  contract,  the  law  will  not  raise  a  promise  by  his 
copartners  to  contribute  their  proportions,  84. 

promise  to  three  partners  to  pay  for  goods  to  be  furnish- 
ed to  a  third  person  does  not  extend  to  goods  furnished 
by  two  of  them  after  one  had  withdrawn  from  the  part- 
nership, 123. 

promise  by  creditor  to  exonerate  a  partner,  no  discharge, 
157.  241. 

PROMISSORY  NOTES.     See  tit.  Bills  of  Exchange. 

PROOF  OF  DEBTS.     See  tit.  Creditors  and  Debts. 

Separate  creditors  may  prove  their  debts  under  a  joint 
commission  for  the  purpose  of  assenting  to  or  dissent- 
ing from  the  certificate,  but  they  cannot  vote  in  the 
choice  of  assignees,  280. 

separate  creditors  of  one  partner  will  not  be  allowed  to 
prove  against  the  joint  estate  a  debt  due  from  the  part- 
nership to  that  partner,  290. 

unless  the  separate  effects,  creating  the  debt,  were  obtain- 
ed by  actual  or  implied  fraud,  292. 

from  what  circumstances  fraud  will  be  inferred,  ibid. 

several  partners  having  distinct  firms  dealing  together  as 
distinct  persons  in  the  articles  of  distinct  trades  may 
prove  as  creditors,  ibid. 

joint  creditors  may  prove  their  debts  under  a  commission 
against  one  or  more  partners  of  a  firm  for  the  purpose 
of  voting  for  assignees,  or  of  assenting  to  or  dissentihg 
from  the  certificate,  310. 

but  not  for  the  purpose  of  receiving  a  dividend  from  the 
separate  estates,  313. 

of  proof  by  a  firm  against  the  estate  of  an  individual  part- 
ner, 316 — 321. 

by  the  solvent  partner  against  the  estate  of  the 
bankrupt  partner,  323. 

PROPERTY. 

Partners  may  possess  personal  or  real  property,  31,  32. 
interest  of  partners  in  personal  property,  ibid. 
in  real  property,  32 — 35. 


INDEX.  489 

FROFERTY—conii7iued. 

a  partnership  cannot  acquire  property  in  goods  obtained 

by  the  fraud  of  one  of  the  partners,  147.  n. 
in  what  manner  joint  property  may  be  effectually  trans- 
ferred by  one  partner  to  another  after  a  dissolution,  238. 
254.  267 — 371. 

PURCHASE. 

Power  of  one  partner  to  bind  the  firm  by  the  purchase  of 
goods,  51.  147. 

although  fraudulently 

made,  52. 
after   a    countermand 
of  authority,  52. 
one  partner  falsely  representing  that  he  has  made  pur- 
chases for  a  third  person,  the  other  partner  is  bound  by 
the  representation,  when,  147. 

REAL  PROPERTY. 

At  law  partners  are  joint  tenants  of  real  property,  33. 

in  equity  they  are  tenants  in  common,  ibid. 

real  property  considered  as  partnership  stock,  ibid.  232. 

although  conveyed  to  one  partner,  if  it  were  purchased 
with  the  joint  capital,  34.  232. 

semble  that  real  property  held  by  partners  is,  on  the  death 
of  one,  distributable  like  personal,  34,  35.  349. 

where  real  estates  of  one  partner  are  sold  in  his  lifetime 
to  pay  partnership  debts  and  there  is  a  surplus,  his  heir 
at  law  after  his  death  has  no  claim  to  it,  355. 

aliter  as  to  a  surplus  arising  from  estates  sold  after  the 
death  of  the  partner,  356. 

real  estates  of  a  deceased  partner  liable  to  the  partnership 
debts,  367. 

but  the  trade  must  continue  until  the  'time  of  his  death, 
368. 

a  trader,  labouring  under  a  mortal  disease,  cannot  quit  his 
trade  for  the  purpose  of  exonerating  his  real  estate, 
without  subjecting  himself  to  the  imputation  of  fraud, 
ibid. 

where  the  heir  at  law  of  the  deceased  partner  is  an  in- 
fant, his  real  estates  cannot  be  sold  during  his  minority, 
ibid. 

RECEIPT. 

A  receipt  given  by  one  partner  for  a  joint  debt,  upon  set- 
ting against  it  a  private  debt  due  from  himself,  is  bind- 
ing, 43.  n. 

a  receipt  by  one  partner  is  a  discharge  as  to  the  other,  62. 

aliter  if  there  is  any  fraud,  ibid. 


490  INDEX. 

RECElFT—conti?iued. 

receipt  given  by  one  partner  for  a  debt  after  a  dissolution, 
when  void,  252. 

after  a  countermand 
of  agency  when 
valid,  ibid. 

RECEIVER. 

A  receiver  will  be  appointed  of  the  effects  of  a  subsisting 
partnership  in  a  case  of  the  grossest  abuse,  114. 

where  there  is  a  covenant  to  refer  disputes,  and  it  has  not 
been  acted  upon,  a  receiver  will  not  be  appointed,  115. 

aliter  if  one  partner  be  excluded  from  the  partnership, 
ibid. 

principle  upon  w^hich  the  Court  of  Chancery  appoints  a 
receiver,  115. 

will  always  pause  before  it  appoints  one,  ibid. 

in  what  cases  a  receiver  of  a  mine  or  colliery  will  be 
appointed,  ibid. 

when  a  receiver  will  be  appointed  after  a  dissolution,  231. 

not  on  the  ground  merely  of  a  previous  dissolution,  un- 
less a  fraudulent  breach  of  contract  or  duty  be  shown, 
ibid. 

on  the  bankruptcy  of  one  partner,  the  solvent  partner 
sometimes  appointed  receiver,  but  without  a  salary, 
232.  327. 

on  the  death  of  one  partner,  a  receiver  will  not  generally 
be  appointed  if  there  be  a  surviving  partner,  356. 

unless  the  survivor  be  guilty  of  mismanagement  and  im- 
proper conduct,  ibid. 

where  all  the  partners  are  dead,  a  receiver  will  be  appoint- 
ed, ibid. 

REGISTER. 

The  registry  acts  relate  to  transfers  made  by  the  act  of 
the  party  only,  and  not  to  transfers  by  operation  of  law, 
as  from  the  commissioners  to  the  assignees  of  a  bank- 
rupt, 277. 

the  registry  of  a  ship  is  not  conclusive  evidence  of  the 
property,  ibid. 

a  ship  registered  in  the  name  of  B,,  but  of  which  A.  has 
the  order  and  disposition,  passes  to  A.'s  assignees,  on 
his  bankruptcy,  ibid. 

so  a  ship  registered  in  the  name  of  one  partner,  but  in  the 
ordering  of  both,  passes  to  the  assignees  of  both,  ibid. 

so  a  ship  registered  in  tlie  names  of  two  partners,  but  in 
the  ordering  of  one,  passes  to  his  assignees,  ibid. 


INDEX.  491 

REGISTER— co7itmued. 

the  registry  acts  do  not  prevent  its  being  shown  in  what 
proportions  registered  part-owners  are  entitled,  277. 

RELEASE.     See  tit.  Covenant. 

A  release  by  one  partner  of  a  partnership  debt  binds  the 
firm,  60. 

unless  there  be  gross  collusion  with  the  debtor,  61. 

the  effect  of  a  release  depends  on  the  right  in  which  it  is 
given,  ibid. 

a  release  by  a  joint  obligee  entitled  only  to  a  moiety  does 
not  bind  the  other,  62. 

a  release  to  one  partner  enures  to  the  benefit  of  all,  186. 

whether  the  release  be  by  deed  or  by  operation  of  law,  ib. 

a  release  to  one  of  two  joint  receivers  is  a  release  of  both. 
ibid. 

so  to  one  of  two  joint  trespassers,  ibid. 

rule  the  same  in  equity,  187. 

where  the  release  is  special,  how  it  is  construed,  ibid. 

a  release  executed  by  partners,  when  evidence  of  partner- 
ship, 19^. 

where  a  person  is  shown  to  be  a  partner  with  the  defen- 
dant, a  release  will  not  render  him  a  competent  witness, 
200. 

release  by  a  solvent  partner,  after  the  bankruptcy  of  his 
co-partner,  when  void,  342. 

REMEDIES. 

Legal  remedies  between  partners,  69 — 92. 

equitable  remedies  between  partners,  93 — 115. 

legal  remedies  for  partners  against  strangers,  1 16 — 142. 

equitable  remedies  for  partners  against  strangers,  142 — 
144. 

legal  remedies  against  partners,  145 — 211. 

when  trespass  may  be  maintained  against  partners,  160.  n. 

when  case,  ibid. 

equitable  remedies  against  partners,  211 — 213. 

proceedings  against  partners  at  the  suit  of  the  crown,  214 
—217. 

equitable  remedies  against  the  assets  of  a  deceased  part- 
ner, 359—366. 

SALE. 

Power  of  one  partner  to  bind  the  firm  by  a  sale  of  part- 
nership efiects,  51. 

his  authority  to  do  so  is  implied  from  the  nature  of  busi- 
ness, ibid. 

a  sale  to  one  partner  of  goods  used  in  the  partnership  is 
a  sale  to  the  partnership,  52. 
76 


492  INDEX. 

SALE — continued. 

whether  a  sale  of  the  whole  joint  property  by  one  tenant 
in  common  is  a  conversion,  qiisere,  92. 

sale  of  the  whole  of  a  ship  by  one  part-owner  is  not  a 
conversion,  ibid.  n. 

on  a  dissolution,  either  partner  may  insist  on  a  sale  of  the 
partnership  effects,  234. 

a  court  of  equity  will  direct  a  sale  by  interlocutory  order 
on  motion,  when,  235. 

a  sale  by  one  partner  to  the  other  of  his  share  in  the  busi- 
ness does  not  necessarily  include  the  good-will,  239. 

where  sales  have  taken  place  under  a  separate  commis- 
sion, it  is  a  reason  why  it  should  not  be  superseded  to 
make  way  for  a  joint  commission,  265. 

power  of  one  partner  to  dispose  of  the  partnership  effects 
after  the  bankruptcy  of  his  co-partner,  306. 

on  the  application  of  the  solvent  partner,  the  assignees 
under  a  separate  commission  will  be  restrained  from 
selling  the  joint  property,  509. 

but  the  assignees  under  a  joint  commission  will  not  be  re- 
strained from  so  doing  on  the  application  of  the  joint 
creditors,  ibid.  n. 

a  sale  of  the  share  of  the  deceased  by  his  executor  to  the 
other  partners,  for  the  purpose  of  being  resold  to  him- 
self, is  void,  355.  n. 

SEPARATE  COMMISSION.     See  tit.  Commission  of  Bank- 
ruptcy. 
SEPARATE  DEBTS.     See  tit.  Debts. 
SEPARATE  ESTATE. 

Real  estates  purchased  by  a  partner  with  money  lent  to 

him  by  the  firm,  are  his  separate  property,  34. 
where  one  partner  insures  his  interest  in  the  joint  pro- 
perty, the  money  recovered  on  the  policy  forms  part 
of  his  separate  estate,  233.  301. 
a  gift  to  two  of  three  partners  in  compensation  of  a  loss 
sustained  by  the  firm  is  the  separate  property  of  the 
two,  233. 
when  the  joint  is  converted  into  separate  estate  by  assign- 
ment from  one  to  the  other  partner,  238.  254.  267 — 

271. 

a  dissolution  merely  does  not  convert  the  joint  estate  into 
the  separate  property  of  the  partner  continuing  in  pos- 
session, 268. 

in  what  cases  the  joint  may  be  converted  into  separate 
estate  by  the  acts  of  the  partners,  271. 


INDEX. 


493 


SEPARATE  ESTATE— co7itmued. 

ships  registered  in  the  names  of  two,  but  in  the  ordering 

of  one  partner,  are  his  separate  property,  277. 
what  passes  as  separate  estate  by  the  assignment  under  a 

separate  commission,  299 — 304. 
separate  estate  entitled  to  be  reimbursed  expenses  incurred 

in  recovering  joint  property,  309. 
joint  creditors  are  not  entitled  to  a  dividend  out  of  the 
separate  estates  until  the  separate  creditors  are  satisfied, 
311—316. 
separate  estate,  when  entitled  to  be  reimbursed  out  of  joint 
estate  what  has  been  proved  against  it  by  the  joint  cre- 
ditors, 316. 
where  both  joint  and  separate  estates  are  liable  for  a  debt, 
if  the  joint  estate  pay  more  than  its  proportion,  the 
separate  estate  must  contribute,  ibid. 
joint  creditors  are  in  equity  only  entitled  to  the  surplus  of 
the  separate  estate  of  a  deceased  partner  after  paying 
separate  creditors,  360. 
SERVANT.     See  tit.  Manager. 
SET-OFF  AND  MUTUAL  CREDIT. 

In  what  cases  a  set-off  is  allowed  in  actions  by  partners 

against  third  persons,  137. 
the  debts  must  be  mutual  and  due  in  the  same  right,  138. 
a  separate  debt  cannot  be  set  against  a  joint  demand,  un- 
less by  agreement,  ibid. 
advances  made  by  bankers  upon  a  bond  given  by  their 
customer  to  one  in  trust  for  the  rest  may  be  set  off,  ibid. 
a  debt  contracted  by  one  partner  in  the  name  of  the  firm 

may  be  set  against  a  debt  due  to  the  firm,  ibid. 
a  joint  debt  contracted  by  a  nominal  partner  may  be  set 

against  a  debt  due  to  the  firm,  ibid. 
if  a  trade  be  conducted  by  one  partner  a  separate  debt  due 
from  him  may,  it  has  been  said,  be  set  against  a  debt 
due  to  the  firm,  ibid,  sed  quxre. 
where  money  is  paid  by  one  partner  after  an  act  of  bank- 
ruptcy, the  defendant,  in  an  action  to  recover  it,  cannot 
set  off  a  debt  due  to  him  from  the  firm,  139. 
of  set  off  in  actions  by  surviving  partners,  ibid. 
in  actions  against  partners,  189. 

against  surviving  partners,  190. 
under  partnership  bankruptcies,  331. 
mutual  credit,  what  is,  332 — 334. 
what  is  not,  333. 

when  it  must  be  given  to  admit  of  being 
set  off,  334, 
in  an  action  by  a  solvent  partner  and  the  assignees  of  two 


494  INDEX. 

SET-OFF  AND  MUTUAL  CREDIT continued. 

bankrupt  partners  for  money  due  to  the  firm,  the  de- 
fendant cannot  set  off  a  debt  due  from  the  firm,  335. 

of  set-off  in  equity,  336. 

difference  between  it  and  set-oS"  at  law,  ibid. 

in  what  cases  allowed,  ibid. 

in  case  of  fraud,  ibid. 

generally  the  rule  of  law,  that  a  joint  cannot  be  set  against 
a  separate  debt,  prevails  in  equity,  337 — 340. 

a.  separate  debt  due  to  a  principal  allowed  to  be  set  against 
a  joint  debt  due  from  the  principal  and  a  surety,  340. 

where  there  is  a  clear  series  of  transactions  to  justify  it,  a 
joint  may  be  set  against  a  separate  debt,  ibid. 
SHIP.     See  tit.  Register. 

The  owners  of  a  ship  are  not  joint-tenants,  but  tenants  in 
common,  32.  n. 

the  sale  of  the  whole  of  a  ship  by  one  part-owner  is  not 
equivalent  to  destruction,  so  that  the  co-tenant  may 
maintain  trover,  92.  n. 

the  admission  of  one  part-owner  of  a  ship  is  not  binding 
on  the  others,  194.  n. 

SLANDER. 

Partners  may  maintain  a  joint  action  for  slander  averring 
special  damage  in  the  partnership  trade,  118. 

and  without  a  statement  of  such  damage,  ibid. 

where  a  co-partnership  is  libelled,  and  the  libel  contains 
something  particularly  affecting  one  of  the  firm,  a  joint 
action  may  be  maintained,  ibid. 

SMUGGLING. 

Contribution  cannot  be  enforced  where  the  claim  arises 
out  of  a  smuggling  transaction,  82. 

partners  cannot  maintain  an  action  for  the  price  of  smug- 
gled goods,  although  sold  by  one  partner  only,  117. 

partners  engaged  in  smuggling  are  jointly  and  separately 
liable  for  the  penalties,  161. 

where  one  partner  engages  in  smuggling  transactions,  with 
the  privity  of  the  others,  they  are  jointly  and  severally 
liable  for  the  penalties,  214. 

aliter  if  he  so  engage  without  their  privity,  215. 

of  the  liability  of  partners  to  penalties  where  a  division  of 
the  smuggled  goods  is  made,  ibid. 

where  a  division  is 
not  made,  ibid. 

STOCK. 

Bond  for  securing  money  paid  for  stock-jobbing  differ- 
ences held  good,  83.  sed  qusere. 


INDEX. 


495 


STOCK. — continued. 

money  lent  to  settle  stock-jobbing  differences  cannot  be 
recovered  back,  85. 

SURETY. 

Partners  are  sureties  for  each  other  within  the  meaning  of 
the  49  Geo.  3.  c.  121.  s.  8.,  32G. 

SURPLUS. 

A  partner  is  only  entitled  to  his  sbare  of  the  surplus  after 

payment  of  the  partnership  debts,  235,  236. 
under  a  commission  of  bankruptcy  against  partners,  nei- 
ther the  joint  creditors  shall  come  upon  the  separate 
estate,  nor  the  separate  upon  the  joint,  but  only  upon 
the  surplus  of  each  that  shall  remain  after  satisfying  its 
own  creditors  respectively,  281. 
if  there  is  a  surplus  of  the  estate  rejected  by  a  joint  and 
separate  creditor,  he  is  entitled  to  his  proportion  of  it, 
286. 
but  whatever  number  of  securities  he  may  have  taken,  he 
can  only  share  in  it  pari  passu  with  the  other  credit- 
.    ors,  289. 

where,  under  a  commission  against  a  dormant  and  an  os- 
tensible partner  the  joint  creditors  resort  to  the  sepa- 
rate estate  of  the  latter,  his  separate  creditors  have  a 
lien  upon  any  surplus  of  the  joint  estate  to  the  extent 
which  their  funds  have  been  diminished,  292. 
when  interest  is  payable  on  debts  in  case  of  a  surplus, 

294. 
where  a  man  is  a  partner  in  several  firms,  how  the  surplus 

of  his  separate  estate  is  applied,  ibid. 
where  distinct  accounts  have  been  ordered  to  be   kept 
under  a  separate  commission,  the  representative  of  the 
solvent  partner  may,  by  petition,  apply  for  an  account 
of  the  surplus,  notwithstanding  it  has  been  paid  over 
to  the  bankrupt,  311. 
when  a  partner,  a  creditor  of  the  partnership,  is  entitled 
to  the  surplus  of  the  joint  estate  in  preference  to  the 
separate  creditors,  322. 
where  real  estates  of  one  partner  are  sold  in  his  lifetime 
to  pay  partnership  debts,  and  there  is  a  surplus,  his 
heir  at  law  after  his  death  has  no  claim  to  it,  355. 
alitcr  as  to  a  surplus  arising  from  estates  sold  after  the 
^       death  of  the  partner,  356. 
joint  creditors  are  in  equity  only  entitled  to  the  surplus 
of  the  separate  estate  of  a  deceased  partner  after  paying 
separate  creditors,  360 


496  INDEX. 

SURVIVING  PARTNER. 

A  court  of  equity  will  not  restrain  the  surviving  partners 
from  using  the  name  of  the  deceased  in  their  trade,  109. 
221.  356. 

the  surviving  partner  of  one  firm  may  sue  the  surviving 
partner  of  another  firm  in  respect  of  transactions  which 
have  taken  place  since  the  decease  of  a  common  part- 
ner, 120. 

of  actions  by  surviving  partners  against  strangers,  131. 
358. 

who  must  join,  131. 

how  they  must  declare,  ibid. 

of  set-ofi"  in  an  action  by  a  surviving  partner,  139. 

of  actions  against  surviving  partners,  172.  358. 
who  must  be  joined,  172. 
how  to  declare  against  them,  ibid. 

of  set-off  in  an  action  against  a  surviving  partner,  190. 

a  surviving  partner  claiming  a  benefit  under  the  will  of 
his  deceased  partner  cannot  refuse  to  admit  a  legatee, 
221.  350. 

of  the  accounts  between  a  surving  and  the  executors  of  a 
deceased  partner,  353. 

a  surviving  partner  will  be  allowed  a  compensation  for 
carrying  on  the  business,  where  he  is  under  no  obli- 
gation to  do  so,  355. 

aliter,  if  he  is  bound  to  carry  it  on,  ibid. 

when  he  will  be  allowed  a  moiety  of  expenses  incurred, 
ibid.  n. 

of  the  liability  of  a  surviving  partner,  358. 
SURVIVORSHIP. 

There  is  no  right  of  survivorship  amongst  partners,  31, 
376. 

nor  amongst  joint  legatees,  who  continue  to  trade  with 
the  property  bequeathed,  32. 

sembh  that  the  right  of  survivorship  does  not  exist  as  to 
real  property  among  partners,  33 — 35. 

choses  in  action  survive  at  law,  131.  348. 

it  is  doubtful  whether  the  good-will  of  a  commercial  part- 
nership survives,  349. 

aliter  of  a  partnership  between  professional  persons,  as 
surgeons,  350. 
TENANTS  IN  COMMON. 

Partners  are  tenants  in  common  in  equity  of  real  estate,  33. 

trover  will  not  lie  by  one  tenant  in  common  against  ano- 
ther for  partnership  effects  wrongfully  taken  away,  90. 

but  if  one  tenant  in  common  destroy  the  thing  in  common, 
trover  will  lie,  91. 


INDEX.  497 

TENANTS  IN  COMMON— co;2/mMe^. 

whether  a  sale  of  the  whole  by  one  tenant  in  common  is  a 

conversion,  qusere,  92. 
the  assignees  of  a  bankrupt  partner  are  tenants  in  common 

with  the  solvent  partner,  29S. 
the  representatives  of  a  deceased  partner  are  tenants  in 

common  with  the  survivor,  351. 

TENDER. 

To  a  plea  of  tender  by  partners,  the  plaintiff  may  reply  a 
subsequent  demand  and  refusal,  and  the  replication  will 
be  supported  by  evidence  of  a  refusal  by  one  partner, 
189. 

a  tender  to  one  partner  is  a  good  tender  to  all,  ibid.  n. 
TORT.     See  tit.  Wrongs. 
TRADE. 

A  partner  not  acting  or  interfering  in  the  trade  is  not  lia- 
ble to  the  penalties  of  the  statute  of  apprenticeship,  158. 
TREASON. 

The  attainder  of  one  partner  for  treason  vests  all  the  part- 
nership effects  in  the  crown,  216. 
TROVER. 

Doubted  whether  an  action  of  trover  can  be  maintained  by 
one  partner  against  another,  90. 

trover  will  not  lie  by  one  tenant  in  common,  against  ano- 
ther for  partnership  effects  wrongfully  taken  away,  e^/^. 

nor  for  goods  delivered  by  one  partner  to  a  person  who 
afterwards  becomes  his  executor,  after  an  act  of  bank- 
ruptcy committed  by  the  other,  90.  345. 

nor  for  goods  delivered  to  a  creditor  of  the  partnership 
under  the  same  circumstances,  91.  332.  374. 

but  if  one  tenant  in  common  destroy  the  thing  in  com- 
mon, trover  will  lie,  91. 

whether  a  sale  of  the  whole  by  one  tenant  in  common  is 
a  conversion,  qiixre,  92. 

the  sale  of  the  whole  of  a  ship  by  one  part-owner  is  not 
equivalent  to  a  destruction,  so  that  the  co-tenant  may 
maintain  trover,  ibid.  n. 

when  one  of  two  assignees  sues  in  trover,  the  non-joinder 
of  the  other  need  not  be  pleaded  in  abatement,  137.  n. 

when  partners  are  liable  in  an  action  of  trover,  160. 

when  the  solvent  partner  may  maintain  trover  against  the 
sheriff  for  seizing  and  selling  the  joint  effects  under  a 
writ  of  execution  against  the  other,  211. 

trover  may  be  maintained  against  a  creditor  of  the  firm 
for  goods  delivered  by  a  partner  who  had  committed  an 
act  of  bankruptcy,  305. 


498  INDEX. 

TRUSTEE. 

A  partner  taking  a  security  for  both  in  his  own  name,  is 

a  trustee  for  the  other,  130,  n. 
firm  when  liable  for  the  produce  of  stock  sold  under  a 

power  forged  by  one  of  the  partners,  who  was  a  trus- 
tee, 148. 
where  one  partner,  who  is  an  executor  or  trustee,  with 

the  privity  of  his  co-partners,  applies  trust-money  to 

the  uses  of  the  partnership,  the  firm  is  liable  for  it,  156. 

285. 
and  the  amount  may  be  proved  as  a  debt  against  the  joint 

estate  in  bankrupt(7y,  285. 
or  against  the  separate  estate  of  the  trustee,  ibid. 
but  the  firm  are  not  responsible  if  the  money  be  brought 

into  the  trade  without  their  knowledge  that  it  was  trust- 
money,  286. 
USURY. 

A  partnership  contract  tainted  by  usury  is  invalid,  25. 
an  advance  for  the  purchase  of  goods,  on  condition  that 

the  lender  shall  have  half  the  profits  on  a  resale,  Avhen 

usurious,  ibid. 
bond  to  secure  money  with  interest  at  five  per  cent,  and 

a  portion  of  the  profits  of  a  business  carried  on  by  the 

borrower,  is  usurious,  ibid. 
where  a  bona  fide  partnership  is  entered  into,  an  advance 

of  money  on  any  terms,  is  not  a  loan,  and  therefore  is 

not  usurious,  26. 
a  contract  by  which  the  lender  of  money  entails  upon 

himself  the  responsibility  of  a  partner  to  the  world, 

cannot  be  impeached  for  usury,  ibid.  n. 
so  a  loan  at  more  than  five  per  cent,  is  not  usurious,  if  the 

lender  agree  to  share  in  the  losses  of  the  business  in 

which  the  money  is  embarked,  27. 
where  one  of  two  partners  commits  usury,  the  other  is  not 

liable  to  the  penalties,  161. 
when  a  parol  usurious  agreement  will  not  affect  the  right 

of  one  partner  to  claim  a  bona  fide  debt  from  the 

other,  325. 
WITNESS. 

When  a  nominal  partner  is  a  competent  witness  to  prove 

a  joint  contract,  141. 
a  dormant  partner,  not  a  party  to  the  contract,  may  prove 

it,  ibid. 
a  party  who  has  purchased  an  interest  in  the  contract  is 

competent,  ibid. 
in  an   action  by  one  partner  for  a  debt,  the  other  may 

prove  payment  to  him  of  it,  ibid. 


INDEX. 


499 


WITNESS.— co7?/mwe(/. 

a  partner,  though  a  plaintiff  in  the  suit,  may  be  admitted 
a  witness  with  the  consent  of  the  defendant,  141. 

a  party  to  the  record  is  not  a  witness  for  himself  or  a  joint 
suitor,  198. 

aliter  if  he  is  a  party  in  a  corporate  capacity  only,  ibid. 

a  partner,  who  pleads  his  bankruptcy,  is  rendered  compe- 
tent if  the  plaintiff  enters  a  nolle  prosequi,  199. 

but  not  if  issue  be  taken  on  the  plea,  ibid. 

and  in  such  a  case  he  is  not,  on  proof  of  his  certificate, 
entitled  to  a  verdict  during  the  progress  of  the  cause, 
ibid. 

a  partner  who  has  suffered  judgment  by  default  is  hot  a 
witness  for  his  co-defendant,  ibid. 

nor  for  the  plaintiff,  ibid. 

and  a  release  from  the  plaintiff  would  not  render  him  com- 
petent without  the  consent  of  the  defendant,  ibid. 

a  copartner  with  the  defendant  in  the  subject  of  the  action 
is  generally  incompetent,  200. 

although  he  charge  himself  with  the  whole  debt,  ibid. 

or  although  the  defendant  offer  to  release  him,  ibid. 

on  proof  of  a  sale  to  the  defendant  and  J.  S.  as  partners, 
J,  S.  cannot  prove  that  the  defendant  bought  as  his  ser- 
vant, ibid. 

in  an  action  against  A.  for  the  price  of  goods  sold,  B.  is 
not  competent  to  prove  that  the  goods  were  sold  to  A. 
and  B.,  and  that  they  were  paid  for  by  remitting  a  debt 
due  to  A.  and  B.,  ibid. 

to  raise  the  subject  of  incompetency,  it  must  be  shown 
not  suggested,  that  the  witness  is  a  partner,  ibid. 
where  the  interest  of  a  partner  inclines  him  to  each  of 
the  parties,  he  is  a  competent  witness,  ibid. 

the  joint  maker  of  a  note  is  competent  to  prove  the  de- 
fendant's signature,  ibid. 

and  one  partner  may  prove  his  copartner's  liability,  201. 

or  that  he  was  a  partner  in  a  trading  company,  ibid. 

one  partner  is  competent  to  prove  want  of  authority  in 
another  to  draw  a  bill  on  the  partnership,  ibid. 

may  disprove  the  authority  of  another  to  make 
a  contract  of  sale  of  goods  for  his  separate  use, 
ibid. 

on  a  plea  in  abatement  by  one  partner,  a  copartner  is  com- 
petent to  prove  a  several  liability,  201. 
negative  it,  202. 

when  and  to  what  extent  a  partner,  calling  a  supposed  co- 
partner to  establish  a  partnership,  may  disprove  his 
statement;  ibid. 

77 


500 


INDEX. 


WirNK^^—con/imied. 

after  a  dissolution,  one  partner  is  a  competent  witness  for 
the  other,  when,  202. 

a  partner  who  has  obtained  his  certificate  under  a  joint 
commission  is  not  competent  to  support  the  commis- 
sion, ibid. 
WRONGS. 

Contribution  cannot  be  claimed  amongst  wrong-doers,  86. 
185. 

unless  where  personal  default  is  not  attributable,  86. 

of  the  liability  of  partners  for  wrongs,  160 — 162. 

in  an  action  for  a  tort,  a  plea  in  abatement  for  nonjoinder 
will  not  hold,  184,  185. 


THE    END. 


VALUABLE  LAW  BOOKS, 

PUBLISHED  BY 

THOMAS,  COWPERTHWAIT  &  CO., 
No.  253,  Market  street,  Philadelphia. 


HARRISON'S  DIGEST— An  Analytical  Digest  of  all  the 

Reported  Cases  determined  in  the  House  of  Lords,  the  several  Courts  of  Common 
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Barrister  at  Law. — First  American,  from  the  second  London  edition,  in  3  vols.,  octavo, 

PETERS'  REPORTS.—Reports  of  Cases  argued  and  ad- 
judged in  the  Supreme  Court  of  the  United  States,  by  Richard  Peters,  Counseller  at 
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Complete  sets  of  the  above  for  Sale,  commencing-  at  January  Term,  1827,  and 
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porter of  the  Decisions  of  the  Supreme  Court  of  the  United  States — complete  in 
tj  vols.     For  sale  separately  or  in  complete  sets. 

PETERS'  DIGEST.— A  full  arranged  Digest  of  Cases,  de- 

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This  Digest  contains  Cases  decided  in  the  Courts  of  tiie  United   States,  from  the 
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and  of  general  usefulness.     Tlie  volumes  of  the  Reports  containing  the  cases  from 
which  these  decisions  have  been  taken  exceed  sixty  in  number,  and  the  high  value  and 
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which  have  not  the  means  of  gaining  access  to  the  already  ample  Library  from  which 
its  materials  are   drawn.     The  decision  of  the  several  Courts  of  the   United  SfatcB 
have,  of  course  an  authority  as  ample  as  the  bounds  of  the  country,  and  no  practising 
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ment is  good.     Here  and  there  we  meet  with  a  paragraph  which  might  be  condensed 
into  a  smaller  compass,  but  we  believe  that  nothing  of  importance  has  been  omitted. 
Prefixed,  are  the  rules  of  the  Supreme  Court.     The  work  is  very  properly  dedicated 


LAW    BOOKS. 


to  Chief  Justice  Taney.  The  paper  and  print  are  very  good. — American  Jurist, 
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tlie  addition  of  Marginal  References  and  Notes,  by  John  Fonblanque,  Esq.,  Barrister 
at  I  .aw.  Tenth  American  edition,  with  References  to  American  Chancery  Decisions, 
and  Additional  Notes,  by  Antonv  Laussat  of  tiie  Pliilidelphia  Bar. — 1  vol.,  octavo. 

CHITTY  ON  CONTRACTS,  1   vol.,  octavo— A  new  edi- 

tion  just  published,  from  a  new  English  edition  greatly  enlarged  and  improved  by 
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sion have  long  and  anxiously  desired,  a  complete  work  on  the  subject  it  assumes  to 
discus:?."  The  present  edition  has  been  thoroughly  prepared  for  the  use  of  the 
American  Profession,  by  J.  C.  Ppjrkins,  Esq.,  who  has  "  found  it  necessary  to  search 
and  investigate  the  whole  of  the  American  law  relating  to  Contracts,  in  order  to 
meet  the  new  state  of  the  English  work."  It  also  contains  the  Notes  of  former  edi 
tors,  Mr.  Troubat,  &c.,  and  has  considerably  more  than  twice  the  amount  of  matter 
of  any  former  edition.  The  former  editions  of  this  work  received  the  preference  of 
the  Profession  over  Comyn,  and  other  works  on  the  same  subject,  so  far  as  to  be  in- 
troduced into  Harvard  University,  and  many  other  Institutions,  as  a  Te.\t  book  in 
the  Law  Department. 

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TY DIGEST,  3  vols.,  Bvo.— The  Equity  Digest  of  Barbour  and  Harrington  em 
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ports, subsequent  tu  those  contained  in  the  American  edition  of  Bridgman's  Digest, 
It  is  recommended  to  the  Profession  as  a  valuable  Digest  of  Equity  Cases,  which 
will  be  found  very  useful  to  those  whose  Libraries  are  furnished  with  the  Reports, 
and  indispensable  to  other  members  of  the  Profession,  who  wish  to  become  acquaint- 
ed with  tiie  decisions  of  the  various  Equity  Courts  in  this  country  and  in  England* 
in  a  condensed  form. 


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CRUDENS'  CONCORDANCE.— A  complete  concordance  to 

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..r-** 


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